Affidavit of Cohabitation

A marriage license is one of the formal requisites of marriage. Couples intending to marry are required to obtain a marriage license from the civil registrar where they reside. Only after the marriage license has been issued can the couple legally marry before a person authorized to solemnize marriages. The Family Code of the Philippines states: “Art. 3. The formal requisites of marriage are: …(2) A valid marriage license except in the cases provided for in Chapter 2 of this Title;”. and in Article 4: “The absence of any of the essential or formal requisites shall render the marriage void ab initio, except as stated in Article 35.” Therefore a marriage solemnized without a marriage license is void but as with many other legal provisions, this rule has an exception. Article 34 is one of the exceptions: “No license shall be necessary 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 are found no legal impediment to the marriage.” Unfortunately, this provision has been abused and violated by many to evade going through the process of applying for a marriage license.

Dayot vs. Dayot

Although this case was decided under the the old civil code on marriage, the ruling can still apply in the present Family Code with respect to the requirement of Article 34. Jose and Felisa married each other on 24 November 1986 and in 1993 Jose filed a case for the declaration of nullity of their marriage. Jose alleged that the marriage was a sham since there was no marriage ceremony that was conducted and that he did not execute the supposed affidavit of cohabitation stating that they lived together as husband and wife for at least five years. The case in the RTC was subsequently dismissed then affirmed by the Court of Appeals but Jose persisted with the case and filed a motion for reconsideration which was later granted by the CA. The Solicitor General appealed the decision of the CA to the Supreme Court.

The Marriage is Void

The Supreme Court agreed with the CA in holding that the marriage between Jose and Felisa is void. The case ultimately boiled down to the issue of the validity of the affidavit of cohabitation that was supposedly executed by Jose and Felisa. The Solicitor General argued that the validity of the marriage was not affected by the falsity of the affidavit of cohabitation since all the other requisites for a valid marriage are present. The SC however did not go with the reasoning of the SolGen and said that since the validation of a marital cohabitation is an exception to the general rule, it must be strictly construed or interpreted. The exception requires that the parties should have lived together as husband and wife for at least five years. This requirement cannot be dispensed with or interpreted in another manner. Jose and Felisa could not have cohabited for at least 5 years because it was admitted that they started living together only in June1986 or at least 5 months prior to their marriage in November of the same year. The marriage between Jose and Felisa is void ab initio because of the absence of a marriage license and that they did not live together as husband and wife for at least five years. The SC ultimately said: “Patently, it cannot be denied that the marriage between Jose and Felisa was celebrated without the formal requisite of a marriage license. Neither did Jose and Felisa meet the explicit legal requirement in Article 76, that they should have lived together as husband and wife for at least five years, so as to be excepted from the requirement of a marriage license.” (G.R. No. 175581 and G.R. No. 179474, March 28, 2008)