Marriages with Prior 5-Year Cohabitation, A34 Family Code
1. Concept
Cohabitation – means “to live together as or as if a married couple”. (Merriam-Webster Online Dictionary)
2. Marriages with Prior 5-year Cohabitation
Art. 34. 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. (76a)
a. No marriage license required
1) Under Article 34 of the Family Code, a marriage license is not required for a marriage between a man and a woman: Provided,
(a) They do not have any legal impediment to marry; and
(b) They have been cohabiting as husband and wife for at least five years.
1) Civil Code equivalent
2) Under the Civil Code, Article 76 provides for the same exception of not requiring a marriage license for those who have cohabited for five years as husband and wife so long as they have no legal impediment to get married. “The reason for the law [under the Civil Code], as espoused by the Code Commission, is that the publicity attending a marriage license may discourage such persons who have lived in a state of cohabitation from legalizing their status.” (Republic v. Tecson-Dayot, G.R. No. 175581, 28 March 2008, Per Chico-Nazario, J.)
Santiago v. People, G.R. No. 200233, 15 July 2015, Per Sereno, CJ.:
• [R]espondent did not dispute that petitioner knew Santos in more or less in February 1996 32 and that after six months of courtship,33 she married him on 29 July 1997. Without any objection from the prosecution, petitioner testified that Santos had frequently visited her in Castellano, Nueva Ecija, prior to their marriage. However, he never cohabited with her, as she was residing in the house of her in-laws,34 and her children from her previous marriage disliked him.35 On cross examination, respondent did not question the claim of petitioner that sometime in 1993, she first met Santos as an agent who sold her piglets.36
• All told, the evidence on record shows that petitioner and Santos had only known each other for only less than four years. Thus, it follows that the two of them could not have cohabited for at least five years prior to their marriage.
b. Affidavit on 5-year cohabitation
1) Article 34 of the Family Code requires the contracting parties to execute an affidavit stating the circumstances of their five year cohabitation.
3. Nature of cohabitation
The couple must be cohabiting as husband and wife who do not have any legal impediment to marry.
Bounsit-Torralba v. Torralba, G.R. No. 214392, 07 December 2022, Per Gaerlan, J.:
• There is also no fact showing that Sue Ann and Joseph actually lived together as husband and wife for five years prior January 26, 1996, the time of the celebration of their marriage. Without a doubt, the records precisely and undisputedly show that it was only in December 1995 when the two officially got together as sweethearts. Earlier than that, Joseph would visit their boarding house, but Sue Ann would not associate herself with the former. Thus, it was impossible for them to live together as husband and wife five years prior to their marriage.
• Since the exceptional case under Article 34 of the Family Code does not apply, the requisite of a valid marriage license is lacking. Hence, pursuant to Article 35 of the said law, the marriage between Sue Ann and Joseph is void from the beginning.
Niñal v. Bayadog, G.R. No. 133778, 14 March 2000, Per Ynares-Santiago, J.:
• The only issue that needs to be resolved pertains to what nature of cohabitation is contemplated under Article 76 of the Civil Code to warrant the counting of the five year period in order to exempt the future spouses from securing a marriage license. Should it be a cohabitation wherein both parties are capacitated to marry each other during the entire five-year continuous period or should it be a cohabitation wherein both parties have lived together and exclusively with each other as husband and wife during the entire five-year continuous period regardless of whether there is a legal impediment to their being lawfully married, which impediment may have either disappeared or intervened sometime during the cohabitation period?
• Working on the assumption that Pepito and Norma have lived together as husband and wife for five years without the benefit of marriage, that five-year period should be computed on the basis of a cohabitation as “husband and wife” where the only missing factor is the special contract of marriage to validate the union. In other words, the five-year common-law cohabitation period, which is counted back from the date of celebration of marriage, should be a period of legal union had it not been for the absence of the marriage. This 5-year period should be the years immediately before the day of the marriage and it should be a period of cohabitation characterized by exclusivity — meaning no third party was involved at anytime within the 5 years and continuity — that is unbroken. Otherwise, if that continuous 5-year cohabitation is computed without any distinction as to whether the parties were capacitated to marry each other during the entire five years, then the law would be sanctioning immorality and encouraging parties to have common law relationships and placing them on the same footing with those who lived faithfully with their spouse. Marriage being a special relationship must be respected as such and its requirements must be strictly observed. The presumption that a man and a woman deporting themselves as husband and wife is based on the approximation of the requirements of the law. The parties should not be afforded any excuse to not comply with every single requirement and later use the same missing element as a pre-conceived escape ground to nullify their marriage. There should be no exemption from securing a marriage license unless the circumstances clearly fall within the ambit of the exception. It should be noted that a license is required in order to notify the public that two persons are about to be united in matrimony and that anyone who is aware or has knowledge of any impediment to the union of the two shall make it known to the local civil registrar.
• In this case, at the time of Pepito and respondent’s marriage, it cannot be said that they have lived with each other as husband and wife for at least five years prior to their wedding day. From the time Pepito’s first marriage was dissolved to the time of his marriage with respondent, only about twenty months had elapsed. Even assuming that Pepito and his first wife had separated in fact, and thereafter both Pepito and respondent had started living with each other that has already lasted for five years, the fact remains that their five-year period cohabitation was not the cohabitation contemplated by law. It should be in the nature of a perfect union that is valid under the law but rendered imperfect only by the absence of the marriage contract. Pepito had a subsisting marriage at the time when he started cohabiting with respondent. It is immaterial that when they lived with each other, Pepito had already been separated in fact from his lawful spouse. The subsistence of the marriage even where there was actual severance of the filial companionship between the spouses cannot make any cohabitation by either spouse with any third party as being one as “husband and wife”.
4. Fraud or failure to comply with 5-year cohabitation
Fraud or failure to comply with the five-year cohabitation results in a marriage void ab initio.
De Castro v. Assidao-De Castro, G.R. No. 160172, 13 February 2008, Per Tinga, J.:
• Under the Family Code, the absence of any of the essential or formal requisites shall render the marriage void ab initio, whereas a defect in any of the essential requisites shall render the marriage voidable. In the instant case, it is clear from the evidence presented that petitioner and respondent did not have a marriage license when they contracted their marriage. Instead, they presented an affidavit stating that they had been living together for more than five years. However, respondent herself in effect admitted the falsity of the affidavit when she was asked during cross-examination…
• The falsity of the affidavit cannot be considered as a mere irregularity in the formal requisites of marriage. The law dispenses with the marriage license requirement for a man and a woman who have lived together and exclusively with each other as husband and wife for a continuous and unbroken period of at least five years before the marriage. The aim of this provision is to avoid exposing the parties to humiliation, shame and embarrassment concomitant with the scandalous cohabitation of persons outside a valid marriage due to the publication of every applicant’s name for a marriage license. In the instant case, there was no “scandalous cohabitation” to protect; in fact, there was no cohabitation at all. The false affidavit which petitioner and respondent executed so they could push through with the marriage has no value whatsoever; it is a mere scrap of paper. They were not exempt from the marriage license requirement. Their failure to obtain and present a marriage license renders their marriage void ab initio.
Republic v. Tecson-Dayot, G.R. No. 175581, 28 March 2008, Per Chico-Nazario, J.:
• We cannot accept the insistence of the Republic that the falsity of the statements in the parties’ affidavit will not affect the validity of marriage, since all the essential and formal requisites were complied with. The argument deserves scant merit. 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.
• Anent petitioners’ reliance on the presumption of marriage, this Court holds that the same finds no applicability to the case at bar. Essentially, when we speak of a presumption of marriage, it is with reference to the prima facie presumption that a man and a woman deporting themselves as husband and wife have entered into a lawful contract of marriage. Restated more explicitly, persons dwelling together in apparent matrimony are presumed, in the absence of any counter-presumption or evidence special to the case, to be in fact married. The present case does not involve an apparent marriage to which the presumption still needs to be applied. There is no question that Jose and Felisa actually entered into a contract of marriage on 24 November 1986, hence, compelling Jose to institute a Complaint for Annulment and/or Declaration of Nullity of Marriage, which spawned the instant consolidated Petitions.
• In the same vein, the declaration of the Civil Code that every intendment of law or fact leans towards the validity of marriage will not salvage the parties’ marriage, and extricate them from the effect of a violation of the law. The marriage of Jose and Felisa was entered into without the requisite marriage license or compliance with the stringent requirements of a marriage under exceptional circumstance. The solemnization of a marriage without prior license is a clear violation of the law and would lead or could be used, at least, for the perpetration of fraud against innocent and unwary parties, which was one of the evils that the law sought to prevent by making a prior license a prerequisite for a valid marriage. The protection of marriage as a sacred institution requires not just the defense of a true and genuine union but the exposure of an invalid one as well. To permit a false affidavit to take the place of a marriage license is to allow an abject circumvention of the law. If this Court is to protect the fabric of the institution of marriage, we must be wary of deceptive schemes that violate the legal measures set forth in our laws.
• Similarly, we are not impressed by the ratiocination of the Republic that as a marriage under a license is not invalidated by the fact that the license was wrongfully obtained, so must a marriage not be invalidated by a fabricated statement that the parties have cohabited for at least five years as required by law. The contrast is flagrant. The former is with reference to an irregularity of the marriage license, and not to the absence of one. Here, there is no marriage license at all. Furthermore, the falsity of the allegation in the sworn affidavit relating to the period of Jose and Felisa’s cohabitation, which would have qualified their marriage as an exception to the requirement for a marriage license, cannot be a mere irregularity, for it refers to a quintessential fact that the law precisely required to be deposed and attested to by the parties under oath. If the essential matter in the sworn affidavit is a lie, then it is but a mere scrap of paper, without force and effect. Hence, it is as if there was no affidavit at all.
• An action for nullity of marriage is imprescriptible. Jose and Felisa’s marriage was celebrated sans a marriage license. No other conclusion can be reached except that it is void ab initio. In this case, the right to impugn a void marriage does not prescribe, and may be raised any time.
