COHABITATION FOR FIVE YEARS.

With respect to the exemption relative to persons

cohabiting for at least five years under Article 34 of the Family Code, it must be observed that
their living together as husband and wife must meet two distinct conditions namely:
1) they must live as such for at least five years characterized by exclusivity and
continuity that is unbroken. (Republic v. Dayot, G.R. No. 175581, March 28, 2008, 550 SCRA
435); and
2) they must be without any legal impediment to marry each other.
WHILE BOTH CONDITIONS MUST CONCUR, THEY DO NOT QUALIFY EACH OTHER. In
other words, during the five-year period, it is not necessary that they must not have suffered
from any legal impediment. The second condition as to the absence of any legal
impediment must be construed to refer only to the time of the actual marriage
celebration. Hence, the parties must be without legal impediment only at the time of the
marriage ceremony and not during all those previous five (5) years.
This must be the interpretation because the essential requirements under Article 2 and the
formal requirements under Article 3 for a valid marriage must be present only at the celebration
of the marriage and not at any other point in time. The five-year period is not among the said
essential and formal requirements. Neither could such time element add or diminish the legal
effects of the said essential and formal requirements. This, in fact, is the intention of the drafters
of the Family Code.
It was Justice Puno who recommended the phrase relative to the absence of legal impediment,
thus:
Justice Puno suggested that they say “and having no legal impediment to marry.” Justice
Reyes, however, commented that the provision may be misinterpreted to mean that during the
five years, the couple should have capacity to marry each other. Justice Puno opined that the
idea in the provision is that, at the time of the marriage, there is no legal impediment to said
marriage. Judge Diy remarked that it may appear that they are consenting to an adulterous
relationship. Justice Caguioa pointed out that what is important is that at the time of the
marriage, both parties are capacitated to marry (Minutes of the 150th joint Civil Code and
Family Law committees held on August 9, 1986, page 3).
This must be the interpretation of the law if the intention of the Code Commission is to really
improve the previous provision contained in Article 76 of the Civil Code. It must be noted that
the said Article 76 of the Civil Code, which has been repealed by Article 34 of the Family Code,
had three conditions for the exemption to apply, namely: 1) the contracting parties must have
lived as husband and wife for at least five years; 2) they must have attained the age of
majority; and 3) they must be unmarried.
Although these conditions should likewise concur, they did not qualify each other. Clearly,
instead of providing specific conditions such as the attainment of the age of majority and the
status of being “unmarried” which seem to indicate that, under the Civil Code, these were the
only legal impediments pertinent in determining the application of the exemption, the Family
Code now provides a broader condition by an amendment providing that no legal impediment
must exist with respect to the contracting parties. There are no more specific types of legal
impediments.
The phrase “legal impediment” under Article 34 of the Family Code refers to any possible
ground or basis under the Family Code, including non-age and the status of being
already married among others, to make a marriage infirm. But the presence or absence of
such legal impediment should only be considered at the time of the celebration of the
marriage ceremony.
Unlike Article 34 of the Family Code, the repealed Article 76 of the Civil Code made it mandatory
that, during the whole five (5)-year period, the contracting parties must be unmarried.
Hence, under the repealed law, a person who was married at anytime during the five year
period and who was living with another person cannot avail of the exception in case he or she
intends to marry his or her live-in partner after his or her legitimate spouse died. In short, there
must be no such legal impediment during the whole five-year period (Niñal v. Bayadog,
G.R. No. 133778, March 14, 2000, 328 SCRA 122). Under Article 34 of the Family Code,
however, for as long as there is no legal impediment at the time of the marriage ceremony, the
parties can avail of the exception (Manzano v. Sanchez, AM No. MTJ 00-1329, March 8, 2001).
Hence, under the Family Code, a spouse who was living-in with his or her paramour can
avail of this exception and marry his or her paramour without a marriage license after the
death of his or her legal spouse. Under this exception, the contracting parties shall state the
fact of their cohabitation for at least five years and the absence of any legal impediment to
marry in an affidavit before any person authorized by law to administer oaths. The solemnizing
offi er shall also state under oath that he ascertained the qualifications of the contracting parties
and found no legal impediment to the marriage. The failure of the solemnizing officer to
investigate shall not invalidate the marriage.
In Cosca v. Palaypayon, 55 SCAD 759, 237 SCRA 249, where a judge solemnized a marriage
involving a party who was only 18 years of age without a marriage license on the basis of an
affidavit where the parties indicated that they lived together as husband and wife for six years
already, the Supreme Court held that the judge acted improperly because he should have
conducted fi rst an investigation as to the qualification of the parties. The judge should have
been alerted by the fact that the child was 18 years old at the time of the marriage ceremony,
which means that the parties started living together when the 18-year-old was barely 13 years of
age. There was a probability that the affidavit was forged. Nevertheless, the Supreme Court did
not state that the marriage was void because clearly at the time of the marriage ceremony, the
parties had no legal impediment to marry.
“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” (De Castro v.
Assidao-De Castro, G.R. No. 160172, February 13, 2008, 545 SCRA 162).
In De Castro v. Assidao-De Castro, G.R. No. 160172, February 13, 2008, 545 SCRA 162, the
Supreme Court ruled the nullity of a marriage on the ground of absence of a valid marriage
license upon evidence that there was in fact no cohabitation for five years contrary to the
statements in the falsified affidavit executed by the parties. The falsity of the affidavit cannot be
considered to be a mere irregularity considering that the 5-year period is a substantial
requirement of the law to be exempted from obtaining a marriage license (See also Republic v.
Dayot, G.R. No. 175581, March 28, 2008, 550 SCRA 435).
Source: Persons and Family Relations, STA. MARIA