When a marriage license is not needed
"My father wants to remarry two years after from my mother’s death in 2016. They were advised by somebody that the marriage will take place even in the absence of a marriage license, and they will just have to execute an Affidavit of Cohabitation. My father intends to have that marriage ceremony this 2018. Is this possible?
The situation of your father does not fall under the circumstances where a marriage may be celebrated without a marriage license. Under Article 34 of the Family Code of the Philippines, it is stated that:“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.”
The intended marriage will run afoul or go against the abovementioned provision of law because they will have to execute an Affidavit of Cohabitation stating that they (your father and the woman he intends to marry) “have lived together as husband and wife for at least five years and without any legal impediment.” In connection with the required five (5)-year cohabitation, it has to be shown that they have been living together as husband and wife as early as 2013. However, from 2013 until 2016, there was still a legal impediment, because at that time your father was still married to your mother. In the case of Niṅal et al. vs. Bayadog (G.R. No. 133778, March 14, 2000), the Supreme Court through Honorable former Associate Justice Consuelo M. Ynares-Santiago stated that:“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. Xxx xxx xxx.”
Applying the above-cited decision in your situation, your father must obtain a marriage license before he can marry. He failed to comply with the requirements of five (5) years of cohabitation as required by law because of the legal impediment existing from 2013 until 2016.We hope that we were able to answer your queries. Please be reminded that this advice is based solely on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated."
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"When a marriage license is not needed"
was written by Mary
under the Legal Advice
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comments. The article was created on 15 September 2021
and updated on 15 September 2021