Notarization Timing for the Affidavit of the Solemnizing Officer under Article 34 of the Family Code of the Philippines
1. Statutory Framework
Article 34 of the Family Code (E.O. No. 209, as amended) exempts couples from the marriage-license requirement only when all three of the following elements coexist:
They have cohabited as husband and wife for at least five (5) continuous years immediately prior to the wedding date;
No legal impediment to marry exists on the day of the ceremony; and
Two affidavits are executed:
- an Affidavit of Cohabitation signed by each contracting party; and
- an Affidavit of the Solemnizing Officer (ASO) stating under oath that he or she has personally ascertained the parties’ qualifications and found no impediment to the marriage.
The Family Code itself sets no explicit period within which either affidavit must be notarized. Timing therefore has been fleshed out by (i) administrative issuances of the Civil Registrar General and the Philippine Statistics Authority (PSA), (ii) the 2004 Rules on Notarial Practice, and (iii) case law interpreting Article 34’s purpose of preventing sham “5-year” marriages.
2. Who May Administer the Oath and Notarize
| Instrument | Persons Authorized to Administer Oath¹ | May the same person officiate & notarize? |
|---|---|---|
| Affidavit of Cohabitation (AC) | Any notary public, judge, clerk of court, mayor, vice-mayor, or in certain remote barangays the municipal registrar | Yes, provided the officiant is also a commissioned notary or ex officio notary (e.g., a judge) |
| Affidavit of Solemnizing Officer (ASO) | Any notary public or other officer authorized to administer oaths | Best practice: the solemnizing officer signs in his personal capacity, then appears before a separate notary to avoid conflict-of-interest questions |
¹ See Art. 3(2) of the Family Code; Rule 11, 2004 Rules on Notarial Practice; and § 41, Administrative Code of 1987.
3. Timing Rules in Practice
| Phase | Key Acts | Recommended Date/Period | Legal / Administrative Basis |
|---|---|---|---|
| Pre-Ceremony Vetting | – Couple gathers documentary proof of the 5-year cohabitation | ||
| – Solemnizing officer reviews IDs, CENOMARs, birth/previous-marriage documents | Typically 1–15 days before the wedding, but no set limit | PSA Circular No. 2013-01 (guidelines on proof of cohabitation) | |
| Execution & Notarization of AC | Contracting parties swear to facts of cohabitation & absence of impediments | Same day as, or not earlier than 30 days before, the wedding | Administrative Order No. 1-1993 (OCRG), which instructs Local Civil Registrars (LCRs) to reject an AC whose execution date is after the ceremony |
| Execution & Notarization of ASO | Solemnizing officer swears he/she has verified the above | Immediately after verifying the requirements and before performing the ceremony; in practice, the date on the ASO and on the Certificate of Marriage should match | Morigo v. People, G.R. No. 145226 (6 Feb 2004); Republic v. Dayot, G.R. No. 175581 (13 Mar 2013) – both voided marriages where affidavits were missing or post-dated |
| Registration | Officer submits Certificate of Marriage + both affidavits to LCR | Within 15 days after the ceremony (30 days if solemnized abroad) | Art. 23, Family Code; Rule 18, A.O. 1-1993 |
Why “before or contemporaneous” notarization matters: In Morigo the Court stressed that Article 34 is an exception to the mandatory license and “must be strictly construed.” An ASO dated two days after the ceremony fatally voided the marriage because, at the moment vows were exchanged, the officer had not yet placed himself under oath that no impediment existed. In Dayot the Court reiterated that post-dated affidavits betray the very assurance Article 34 seeks to provide the State.
4. Practical Checklist for Solemnizing Officers
Due Diligence Interview – Examine IDs, CENOMARs, prior-marriage decrees, proof of five-year cohabitation (e.g., barangay certifications, joint bank or property records).
Prepare Both Affidavits – Fill in blanks but sign and notarize only on the wedding day after final verification.
Notarization Sequence:
- (a) Parties appear and swear to the AC → Notary signs, seals, and records in Notarial Register.
- (b) Immediately thereafter, solemnizing officer appears (as affiant) before the same or another notary to execute the ASO.
Solemnize Marriage – Indicate on the Certificate of Marriage that the license is “Not required under Article 34, FC”.
Timely Reporting – Forward the Certificate + both duly-notarized affidavits to the LCR within 15 days.
5. Consequences of Improper Timing
| Defect | Resulting Risk | Potential Liability |
|---|---|---|
| ASO notarized after the ceremony | Marriage void ab initio (Art. 4, FC) | Bigamy prosecution; disciplinary sanctions vs. notary & officiant |
| Affidavits notarized by a non-commissioned notary | Void marriage; criminal liability for illegal practice of law | Administrative cases vs. notary; civil damages |
| ASO notarized long before the ceremony ( > 90 days) | LCR may treat as “stale”; possibility of refusal to register | Couple must re-execute or seek judicial declaration of validity |
6. Best-Practice Timelines (Illustrative)
| Date | Action |
|---|---|
| 10 June 2025 | Couple consults officiant; submits proof of cohabitation |
| 15 June 2025 | Draft AC & ASO prepared (unsigned) |
| 18 June 2025 (Wedding Day) | 09:00 AM – Parties sign & notarize AC |
| 09:15 AM – Solemnizing officer signs & notarizes ASO | |
| 10:00 AM – Marriage ceremony | |
| 19 June 2025 | Officiant registers documents with LCR |
7. Frequently Asked Questions
Q 1: May the solemnizing officer notarize his own ASO? Technically yes if he is a commissioned notary (e.g., a judge). But the Supreme Court in Datu v. Judge Maimbong (A.M. RTJ-11-2270, 5 Oct 2016) warned that acting both as affiant and notary “creates the appearance of impropriety.” Safer practice: appear before a different notary.
Q 2: What if the ASO bears the same date but is notarized after the ceremony (e.g., ceremony at 10 AM; notarization at 1 PM)? Strict literalists say it is already late, because the oath must precede the act it guarantees. A few LCRs tolerate same-day notarization if time of signing is not indicated. To avoid doubt, notarize before the officiant pronounces the couple married.
Q 3: Must the affidavits be notarized in the municipality where the marriage occurs? No. Notarial acts have nationwide force, but some LCRs require either local notarization or a Certification of Authority from the commissioning court. Check local ordinances.
8. Key Takeaways
- Sequence is everything—both affidavits should be notarized before or contemporaneously with the ceremony, never after.
- Date congruity among the AC, ASO, and Certificate of Marriage is the LCR’s first compliance check.
- Failure to meet timing rules voids the marriage even when the 5-year fact of cohabitation is true.
- Err on the side of caution: Treat Article 34 marriages as “license-less but not paper-less.” Prompt, properly-timed notarization safeguards both the couple and the officiant.
This article is for general legal education in the Philippine context and does not create an attorney-client relationship. For advice on a specific situation, consult a Philippine lawyer or your local civil registrar.