Introduction

In Philippine family law, the Affidavit of Cohabitation and the Affidavit of the Solemnizing Officer serve as critical documentary requirements for marriages exempt from the need for a marriage license. These affidavits operationalize the exception provided under Article 34 of the Family Code of the Philippines (Executive Order No. 209, as amended), which recognizes long-term cohabitation as a valid substitute for the formal marriage license. This provision acknowledges the reality of couples who have already established a marital-like relationship for a significant period without legal barriers to marriage. The affidavits ensure transparency, verify the absence of impediments, and protect the integrity of the marriage contract by requiring sworn statements from both the contracting parties and the solemnizing officer.

The procedure for obtaining and executing these affidavits is straightforward yet demands strict compliance to avoid nullity of the marriage or criminal liability for perjury. This article provides a comprehensive examination of the legal framework, substantive requirements, procedural steps, contents of each affidavit, and related considerations under existing Philippine jurisprudence and regulations.

Legal Basis

The primary legal foundation is Article 34 of the Family Code, which states:

“No license shall be required for the marriage of a man and a woman who have lived together as husband and wife for at least five years, and without any legal impediment to marry each other. The contracting parties shall state the foregoing facts in an affidavit before any person authorized by law to administer oaths. The solemnizing officer shall also state under oath that he ascertained the qualifications of the contracting parties and found no legal impediment to the marriage.”

This article must be read in conjunction with:

Articles 2 and 3 (essential requisites of marriage: legal capacity and consent freely given).
Articles 35 to 38 (void marriages, including those with legal impediments such as prior subsisting marriage, blood or affinity relationships, or psychological incapacity).
Article 39 (action for declaration of nullity).
Articles 7 to 10 (who may solemnize marriages, including authorized civil and religious officers).
Republic Act No. 10625 (Philippine Statistics Authority Act) and related Local Civil Registrar regulations governing registration of marriages.
Rule on Declaration of Absolute Nullity of Void Marriages and Annulment of Voidable Marriages (A.M. No. 02-11-10-SC), which underscores the evidentiary value of affidavits in marriage validity cases.

The five-year cohabitation period must be continuous and exclusive, immediately preceding the marriage. Jurisprudence, such as Republic v. Dayot (G.R. No. 175581, March 28, 2008) and Manzano v. Sanchez (A.M. No. MTJ-00-1329, March 8, 2001), emphasizes that the cohabitation must be without any legal impediment throughout the entire period. Mere cohabitation, even for five years, is insufficient if an impediment existed at any point.

False statements in either affidavit constitute perjury under Article 183 of the Revised Penal Code, punishable by imprisonment and fine. Moreover, fraud in procuring the marriage may render it voidable under Article 45 or void ab initio under Article 35(3) if essential requisites are absent.

Purpose and Significance of Each Affidavit

1. Affidavit of Cohabitation

This is the joint sworn statement executed by the prospective bride and groom. Its purpose is to:

Declare under oath that the parties have cohabited as husband and wife for at least five (5) years immediately preceding the marriage.
Affirm that no legal impediment to marriage exists (e.g., no prior marriage, no consanguinity or affinity within prohibited degrees, no age-related incapacity, no psychological incapacity known to them).
Serve as prima facie evidence before the Local Civil Registrar (LCR) and the solemnizing officer, allowing issuance of the marriage certificate without a license.

The affidavit substitutes for the marriage license application process under Article 26 and related Civil Registry rules.

2. Affidavit of the Solemnizing Officer

This is executed separately by the person authorized to solemnize the marriage (e.g., judge, mayor, priest, imam, or consul). Its purpose is to:

Confirm that the solemnizing officer personally ascertained the parties’ qualifications.
Verify the truthfulness of the parties’ declarations regarding cohabitation and absence of impediments.
Attest that the marriage was solemnized in accordance with law.

This affidavit is attached to the marriage certificate and forms part of the permanent record submitted to the Local Civil Registrar.

Requirements for Validity

To avail of the Article 34 exemption, the following must concur:

The parties must be a man and a woman (consistent with the Family Code’s heterosexual framework).
Cohabitation must total at least five (5) years, computed from the date they began living together as husband and wife until the date of marriage.
The relationship must have been continuous, public, and exclusive.
No legal impediment must have existed at any time during the five-year period (e.g., a prior marriage must have been terminated by death or final nullity decree before or at the start of cohabitation).
Both parties must be of legal age (18 years or older) or, if below 21, must have parental consent where applicable (though Article 34 marriages are exempt from license, capacity requirements remain).
The marriage must otherwise comply with all essential and formal requisites under Articles 2–22.

Detailed Procedure for Obtaining the Affidavits

Step 1: Preparation of the Affidavit of Cohabitation

The contracting parties draft or have a lawyer/notary prepare the joint affidavit.
The document must be typewritten or printed in English or Filipino.
Required contents (minimum):
- Full names, ages, civil status prior to cohabitation, and current residence of both parties.
- Exact date when cohabitation as husband and wife began.
- Explicit statement that they have lived together continuously for at least five years.
- Declaration that “there is no legal impediment to their marriage.”
- Statement that the facts are true and correct under oath.
- Signatures of both parties.
The affidavit may include supporting details such as children born during cohabitation (if any) or shared residence proof, though not mandatory.

Step 2: Notarization of the Affidavit of Cohabitation

The parties appear personally before any person authorized to administer oaths, including:
- Notary Public
- Judge of a court
- Municipal or City Mayor
- Authorized government officer under the Notarial Rules (2004 Rules on Notarial Practice, A.M. No. 02-8-13-SC)
Both parties must present valid identification (e.g., Philippine Passport, Driver’s License, SSS ID, or any government-issued ID with photo and signature).
The notary verifies identity, explains the contents, and administers the oath.
The notary affixes the notarial seal, records the document in his notarial register, and issues a certified copy if requested.
No marriage license application is filed with the Local Civil Registrar at this stage; the notarized affidavit itself serves as the basis.

Step 3: Presentation to the Solemnizing Officer

The notarized Affidavit of Cohabitation is submitted to the chosen solemnizing officer together with:
- Birth certificates or valid IDs of both parties.
- Certificates of no marriage (CENOMAR) from the Philippine Statistics Authority (PSA) to corroborate absence of impediments.
- Any other evidence the officer may require (e.g., barangay certificates, joint bank accounts, or testimonies of witnesses).
The solemnizing officer conducts an independent inquiry to satisfy himself of the parties’ qualifications.

Step 4: Execution of the Affidavit of the Solemnizing Officer

Immediately before or after the marriage ceremony, the solemnizing officer prepares and executes his own affidavit.
Required contents:
- Name, designation, and authority of the solemnizing officer.
- Date and place of the marriage.
- Statement that he personally examined the parties and the Affidavit of Cohabitation.
- Affirmation that he ascertained compliance with Article 34 requirements.
- Declaration that no legal impediment was found.
- Oath that the foregoing is true and correct.
The affidavit is signed and sworn before another notary or self-notarized if the officer is authorized (e.g., judges often notarize their own solemnizing affidavits).

Step 5: Solemnization and Registration

The marriage is solemnized in the presence of at least two witnesses.
The marriage certificate is accomplished, attaching:
- Original Affidavit of Cohabitation.
- Affidavit of the Solemnizing Officer.
- Other required documents.
Within 15 days, the solemnizing officer or the parties transmit the complete documents to the Local Civil Registrar of the place where the marriage was solemnized (or the PSA for registration).

Common Issues and Jurisprudential Guidance

Computation of the Five-Year Period: Must be unbroken. Interruption by separation or legal impediment resets the period (Republic v. Olaybar, G.R. No. 167848, June 5, 2013).
Proof of Cohabitation: While the affidavit is prima facie evidence, courts may require corroboration in nullity cases (Chi Ming Tsoi v. Court of Appeals, G.R. No. 119190, January 16, 1997).
Solemnizing Officer Liability: An officer who knowingly solemnizes a marriage despite an impediment faces administrative and criminal sanctions (Manzano v. Sanchez).
Subsequent Registration: Even if the affidavits are properly executed, failure to register the marriage with the LCR does not invalidate the marriage but affects its evidentiary value in court.
Overseas Filipino Workers (OFWs): Consular officers may solemnize and administer oaths abroad under the Foreign Service Act and Family Code.
Muslim Marriages: The Code of Muslim Personal Laws (PD 1083) has parallel provisions, but Article 34 of the Family Code generally applies to non-Muslims unless specific Sharia exceptions are invoked.

Practical Considerations

Cost: Notarization fees are minimal (usually ₱100–₱500 per document depending on the notary). No marriage license fee is collected.
Venue: The marriage may be solemnized anywhere in the Philippines or abroad if the solemnizing officer is duly authorized.
Amendments or Corrections: Errors in the affidavits may be corrected via supplemental affidavit or judicial petition under Rule 108 of the Rules of Court.
Evidentiary Value: In future proceedings (e.g., bigamy, legitimacy of children, or inheritance), the affidavits constitute strong evidence of the marriage’s validity.

Conclusion

The Affidavit of Cohabitation and the Affidavit of the Solemnizing Officer are not mere formalities but statutory safeguards that uphold the sanctity and legality of marriages contracted without a license under Article 34 of the Family Code. Strict adherence to the procedural requirements—preparation, notarization, verification, solemnization, and registration—ensures that only genuine, impediment-free unions receive legal recognition. Any deviation risks rendering the marriage void or exposing parties and officers to legal sanctions. Practitioners and contracting parties are advised to consult the latest issuances of the Office of the Civil Registrar General for any administrative updates implementing these provisions.