A valid marriage license is a requisite of marriage under, the absence of which renders the marriage void ab initio. However, there are several instances wherein a marriage license is dispensed with, one of which is that provided in Article 34 of the Family Code, referring to the marriage of 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. (Nial, et al. vs. Bayadog, G.R. No. 133778, March 14, 2000 [328 SCRA 122])

Art. 34 of the Family Code provides:

"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 and found no legal impediment to the marriage."


What is the rationale why no license is required in such case?

The rationale why no license is required in such case 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. The publicity attending the marriage license may discourage such persons from legitimizing their status. To preserve peace in the family, avoid the peeping and suspicious eye of public exposure and contain the source of gossip arising from the publication of their names, the law deemed it wise to preserve their privacy and exempt them from that requirement. (Nial, et al. vs. Bayadog, ibid.)


What requisites must concur for this provision on legal ratification of marital cohabitation to apply?

In order that Art. 34 of the Family Code regarding legal ratification of marital cohabitation may apply, the following requisites must concur:

1. The man and woman must have been living together as husband and wife for at least five years before the marriage;

2. The parties must have no legal impediment to marry each other;

3. The fact of absence of legal impediment between the parties must be present at the time of marriage;

4. The parties must execute an affidavit stating that they have lived together for at least five years [and are without legal impediment to marry each other]; and

5. The solemnizing officer must execute a sworn statement that he had ascertained the qualifications of the parties and that he had found no legal impediment to their marriage. (Manzano vs. Judge Sanchez, A.M. No. MTJ-00-1329, March 8, 2001)


When should the 5-year period be reckoned?

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 any time 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. 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. (Nial, et al. vs. Bayadog, ibid.; Republic v. Dayot, G.R. No. 175581, March 28, 2008)


What is the effect of a falsified affidavit of marital cohabitation where the parties have in truth fallen short of the minimum five-year requirement?

The falsity of an affidavit of marital cohabitation, where the parties have in truth fallen short of the minimum five-year requirement, effectively renders the marriage void ab initio for lack of a marriage license.

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. (Republic v. Dayot, ibid.)


Can the falsity of the affidavit be considered as a mere irregularity?

The falsity of the allegation in the sworn affidavit relating to the period of cohabitation 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. (Republic v. Dayot, ibid.)

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 applicants 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. [De Castro vs Assidao-De Castro, G.R. No. 160172, February 13, 2008]