Is it still necessary to get a marriage license if the parties to be married have already been living together as husband and wife?

A marriage license is one of the formal requisites of marriage (Article 3, Family Code of the Philippines). Except in the cases provided in Articles 27, 28, 31, 32 and 34 of the Family Code of the Philippines, anyone who wants to be married must secure a marriage license from the local civil registrar of the city or municipality where either contracting party habitually resides (Article 9, id.). Such marriage license shall be valid in any part of the Philippines for a period of one hundred twenty (120) days from the date of issue and shall be deemed automatically cancelled at the expiration of said period if the contracting parties have not made use of it (Article 20, id.).

One exception to the marriage license requirement is termed as the legal ratification of marital cohabitation as provided in Article 34 of the Family Code, to wit:

“Article 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 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”.

By lessening the requirements of getting married, this exemption somehow encourages persons who have been living together without the benefit of marriage to legalize their cohabitation. However, the mere cohabitation between the contracting parties does not automatically exempt them from the marriage license requirement. In order that this exemption may be invoked, the following requisites, as enunciated in the case of Borja-Manzano vs. Sanchez (A.M. No. MTJ-00-1329, March 08, 2011) are: 

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.

Taken from: Manila Times

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What marriages are exempted from license requirement under the Family Code?

Under the Family Code, there are certain marriages which are exempted from requiring a marriage license for their validity. In lieu of a marriage license, the law merely requires that the solemnizing officer shall state under oath that he ascertained the qualification of the parties and found no legal impediment to the marriage.

These marriages are:

1. Marriages in articulo mortis or at the point of death (Art. 27, FC);

2. Marriages in remote places (Art. 28, FC);

3. Marriages between Muslims or among members of the ethnic cultural  communities (Art. 33, FC);

4.  Legal ratification of marital cohabitation (Art. 34, FC);

5. Marriages solemnized outside the Philippines where no marriage license is required by the country where it was solemnized.

In order that a ship captain, airplane pilot or a military commander of a unit may solemnize a marriage, what requisites must concur?

In order that a ship captain or airplane chief may solemnize a marriage, the following requisites must concur:

1. The marriages must be in articulo mortis; and

2. It must be solemnized while the ship is at sea or the plane is in flight or during stopovers at ports of call (Art. 31, FC)

In the case of a commanding officer of an army unit, it is essential that the following requisites must concur:

1.  The marriages must be in articulo mortis; 

2. The military commander must be a commissioned officer; and

3. It must be solemnized within the zone of military operations (Art. 32, FC)

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Legal Ratification of Marital Cohabitation

A valid marriage license is a requisite of marriage under, the absence of which renders the marriage void ab initio. The Constitution considers marriage a an “inviolable social institution”, and is the foundation of family life which shall be protected by the State.  This is why the Family Code considers marriage as “a special contract of permanent union” and case law considers it not just an adventure but a lifetime commitment.” (Niñal, et al. vs. Bayadog, G.R. No. 133778, March 14, 2000 [328 SCRA 122])

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. 

Rationale:

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. (Niñal, et al. vs. Bayadog, ibid.)

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.

Requisites:

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)

Reckoning of 5-year period

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. (Niñal, et al. vs. Bayadog, ibid.)

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Marriages Exempted from Licence Requirement

Marriage in articulo mortis

In case either or both of the contracting parties are at the point of death, the marriage may be solemnized without necessity of a marriage license and shall remain valid even if the ailing party subsequently survives. (Art. 27, Family Code)

Marriage in inaccessible place

If the residence of either party is so located that there is no means of transportation to enable such party to appear personally before the local civil registrar, the marriage may be solemnized without necessity of a marriage license. (Art. 28, FC)

Duty of solemnizing officer in case of articulo mortis or remote places

In the cases provided for in the two preceding articles, the solemnizing officer shall state in an affidavit executed before the local civil registrar or any other person legally authorized to administer oaths that the marriage was performed in articulo mortis or that the residence of either party, specifying the barrio or barangay, is so located that there is no means of transportation to enable such party to appear personally before the local civil registrar and that the officer took the necessary steps to ascertain the ages and relationship of the contracting parties and the absence of legal impediment to the marriage. (Art. 29, FC)

Affidavit to be sent to the civil registrar

The original of the affidavit required in the last preceding article, together with the legible copy of the marriage contract, shall be sent by the person solemnizing the marriage to the local civil registrar of the municipality where it was performed within the period of thirty days after the performance of the marriage. (Art. 30, FC)

Marriage solemnized by ship captain or airplane pilot

A marriage in articulo mortis between passengers or crew members may also be solemnized by a ship captain or by an airplane pilot not only while the ship is at sea or the plane is in flight, but also during stopovers at ports of call. (Art. 31, FC)

Marriage solemnized by military commander

A military commander of a unit, who is a commissioned officer, shall likewise have authority to solemnize marriages in articulo mortis between persons within the zone of military operation, whether members of the armed forces or civilians. (Art. 32, FC)

Marriage by Muslims or cultural communities

Marriages among Muslims or among members of the ethnic cultural communities may be performed validly without the necessity of marriage license, provided they are solemnized in accordance with their customs, rites or practices. (Art. 33, FC)

Marriage by parties who have cohabited for 5 years

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. (Art. 34, FC)

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