Introduction

The main objective of this paper is to investigate whether or not

Article 34 of the Family Code can be subject to amendments, if any,
specifically on the substance of its provision. Article 34 of the Family
Code was repealed by Article 76 of the Civil Code of the Philippines and
ever since, the Supreme Court rendered its decision on several cases
which raised several issues from legal commentators and even from the
Justices of the Supreme Court1. The scope of the paper will cover laws
and jurisprudence applicable to the subject matter discussed.

Article 34 of the Family Code is one of the situations where the

contracting parties need not to obtain or procure a marriage license
prior to getting validly married. The main objective or rationale of
Article 34 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 license2. The provision states as follows:

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 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.

In addition Article 3 paragraph 2 of Family Code expressly

provides the exception of the aforementioned Article to the formal
requisite of a valid marriage license. To wit:

Article 3. The formal requisites of marriage are:

(1) Authority of the solemnizing officer;

(2) A valid marriage license except in the cases provided for in

Chapter 2 of this Title; and

1 Minutes of the 150th joint Civil Code and Family Law committees, August 9, 1986, p. 3
2 G.R. No. 160172, February 13, 2008.
1
 (3) A marriage ceremony which takes place with the
appearance of the contracting parties before the solemnizing
officer and their personal declaration that they take each
other as husband and wife in the presence of not less than two
witnesses of legal age.

The Code Commission indeed made some changes or alterations

on Article 76 of the Civil Code to a supposed improved version of the
provision embodied in Article 34 of the Family Code. By amendments
made by the Code Commission, the presumption is gleaned towards
improvement of a statute or provision as amendment is an
improvement of some principal writing in legislation or modification or
alteration proposed to be made in a an enacted law to correct any error
made in process3. Article 76 of the Civil Code provides as follows:

Article 76. No marriage license shall be necessary when

a man and a woman who have attained the age of majority
and who, being unmarried, have lived together as husband
and wife for at least five years, desire 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 official, priest or minister who solemnized the
marriage shall also state in an affidavit that he took steps to
ascertain the ages and other qualifications of the contracting
parties and that he found no legal impediment to the
marriage.

However, if we are to dissect the construction of both statutes, the

presumption of improvement does not seem fit in the case at hand.
Article 34 has a much broader requisite emphasized in the clause
“without any legal impediment to marry each other” in contrary to
Article 76 of the New Civil Code which did not indicate such. Hence, this
is a proposal to amend Article 34 of the Family Code to modify its
requisites for an applicant for marriage to avail such provision and to
eliminate the possible circumvention of the law and to prevent the
exploitation of the essence of the statute.

Issues and Discussion

The issues regarding Article 34 of the Family Code arose from the
jurisprudence laid down by the Supreme Court in different cases
wherein the Court interpreted Article 34 and 76 of the Family Code and

3 Black’s Law Dictionary (6th Ed. 1990)

2
New Civil Code respectively, in such a way that it was not consistent.
The requisites of Article 34 of Family Code and Article 76 of the New
Civil Code are almost the same with just a very minute different in the
wordings. Overall, both provisions can be interpreted similarly based on
its construction. Nonetheless, the slight difference on both provisions’
letter leads us to the first issue in the case at hand concerning the five-
year period. The five-year (5) period is the most important element that
needs to be amended for it affects all other relevant issues in the case at
bar. In other words, whether it is not necessary that any of the
contracting parties must not have suffered from any legal impediment
during the said entire period.

The provision itself is also silent and did not categorically define
as to when or where the legal impediment must exist or at what point in
time. Hence, this brings us to the question which we seek to address in
the first issue: does this mean that there should be no legal impediment
only at the time of the marriage ceremony and not during all those
previous five years?

In the case of Niñal v. Bayadog4, the husband Pepito Niñal and

respondent Norma Badayog got married without a marriage license
only after a year and eight months after the death of the Pepito Niñal’s
wife. In lieu of a marriage license, Pepito and Norma executed an
affidavit stating that they had lived together as husband and wife for at
least five years and therefore exempt from securing a marriage license*.
The Court also ruled that the question 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 license5.

The Court ruled that 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, and since the two marriages involved herein having been
solemnized prior to the effectivity of the Family Code, the applicable law
to determine their validity is the Civil Code which was the law in effect
at the time of their celebration6. This five-year period should be the
years immediately before the day of the marriage and it should be a
period of cohabitation characterized by exclusivity. That is there should
be no third party that was involved at anytime within the five years and

4 G.R. No. 133778, March 14, 2000.

5 Id.
6 Tamano v. Ortiz, 291 SCRA 584 (1998).

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continuity that is unbroken. Otherwise, if the continuous five-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 spouse7.

In this case, at the time of the marriage of Pepito and Norma, it

cannot be considered that they both have lived with each other as
husband and wife for at least five years prior to their wedding day. It
must be noted that only about twenty months had elapsed from the time
Pepito’s first marriage was dissolved through the death of his wife to the
time of his marriage with Norma. 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 still had a subsisting
marriage at the time when he started cohabiting with Norma. 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"8.

The Court’s decision in the Niñal v. Bayadog was affirmed by the

latter case of Republic v. Dayot9. In the case of Republic v. Dayot, Jose
Dayot and Felisa Tecson got married without a marriage license. In lieu
of a marriage license, Jose and Felisa executed a sworn affidavit
attesting that both of them had attained the age of maturity, and that
being unmarried, they had lived together as husband and wife for at
least five years. While Felisa’s marriage to Jose was subsisting, the Jose
contracted marriage with a certain Rufina Pascual. However, it was
established that Jose and Felisa have not lived together for five years
prior marriage but only barely for five months prior to the celebration
of their marriage. The Court ruled that the minimum five-year requisite
is indispensible and must be sufficed in order for marriage applicants to
validly use of Article 34 of the Family Code.

7 G.R. No. 133778, March 14, 2000.

8 Id
9 G.R. No. 175581, March 28, 2008.

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 The Court’s basis of its decision is in consistent to the precept of
the sanctity of marriage and an inviolable institution of the society is
very much well illustrated in a phrase extracted from the case of Niñal v.
Bayadog, to wit:

“…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.”

However, stare decisis cannot apply in Article 76 of the Civil Code

for what is enforceable henceforth the effectivity of the Family Code is
Article 34 where legal impediment must only exist at the time of the
celebration of marriage. This interpretation is based from the fact that
Article 2 and the formal requisites under Article 3 for a valid marriage
must be present only at the celebration of the marriage and not at any
point in time10. This is why Article 34 contradicts the jurisprudence laid
down by the Supreme Court on previously ruled cases such as the
Bayadog and Dayot cases.

The second issue this proposal seeks to address and amend is in

relation to minimum age of would-be couples who can avail of Article 34
of the Family Code. Legal capacity to contract to marriage is eighteen
(18) as age of majority11. Hence, legal capacity is an indispensible
requirement for a marriage to be valid. Article 2 of the Family provides:

Article 2. No marriage shall be valid, unless these

essential requisites are present:

(1) Legal capacity of the contracting parties who

must be a male and a female; and
(2) Consent freely given in the presence of the
solemnizing officer.

10 Sta. Maria, Melencio Jr. (2015), Persons and Family Relatiosn Law Sixth Ed., Philippines: Rex
Bookstore, Annotation, p. 202,
11 R.A. No. 6809, An Act Lowering the Age of Majority From Twenty-One to Eighteen Years

5
 It is therefore clear that legal capacity of the contracting parties
cannot be dispensed with otherwise absence of such would render the
marriage void ab initio12. However, the problem with Article 34 is that it
allows marriage to happen even if one of the contracting parties could
be as young as thirteen (13) years of age. This is not impossible to
happen for the law states that legal capacity to marry is qualified to
eighteen years of age. For this reason, thirteen will never be considered
as age of majority and thus, this follows the logic that a person who
started to cohabit starting at the age of as early as thirteen within the
purview of “union without benefit of marriage” does not suffice the
essential requisite of Article 2 paragraph 1 of the Family Code. This now
comprises our third issue for the need to amend, the minimum age of
would-be couples who can avail of Article 34 of the Family Code.

In the case of Cosca v. Palaypayon13, the Court ruled that there

could have been a possibility that the affidavit of cohabitation executed
by the contracting parties Abellano and Edralin was falsified for in the
said affidavit, it was stated that Abellano was only eighteen years, two
months and seven days old. If he and Edralin had been living together as
husband and wife for almost six years already before they got married
as the Court finds it improbable and hard to believe that Abellano must
have been less than thirteen (13) years old when he started living with
Edralin as his wife. The judge who solemnized the said marriage was
aware of the facts presented before him yet turned a blind eye on his
duty to ascertain the qualification of the contracting parties who might
have executed a false joint affidavit in order to have an instant marriage
by avoiding the marriage license requirement14.

Furthermore, the Cosca v. Palaypayon case is not the only case

that illustrates the fact those unscrupulous members of the judiciary
and contracting parties alike abuse the good intention of the law by
invoking Article 34 of the Family Code. In the case of Republic v. Dayot
wherein both contracting parties entered into marriage by making use
of Article 34 and have falsified the content of their affidavit making the
solemnizing officer believe that they both cohabited as husband and
wife for at least five years. In De Castro v. Assidao-De Castro15, a case
with similar facts, the Supreme Court declared that the falsity of the
affidavit cannot be considered as a mere irregularity in the formal
requisites of marriage. The false affidavit which petitioner and
respondent executed which stated that they have complied with the

12 Article 35 Paragraph 1 of the Family Code.

13 A.M. No. MTJ-92-721, September 30, 1994.
14 Id.
15 G.R. No. 160172, February 13, 2008.

6
five-year minimum cohabitation so only they could push through with
the marriage has no value whatsoever and therefore a mere scrap of
paper16. They were not exempt from the marriage license requirement.
Their failure to obtain and present a marriage license renders their
marriage void ab initio. Another instance, in the case of Manzano v.
Sanchez17 which the Court ruled that there has been gross ignorance of
law by the judge by solemnizing the marriage of Borja and Manzano
even if he knew or that the same was void and bigamous, as the
marriage contract clearly stated that both contracting parties were
separated. Respondent Judge Sanchez invoked as defense to solemnized
the marriage under Article 34 of the Family Code.

Hence, Article 34 of the Family Code, though definitely not the

intention of the framers of the law, is subject to abuse by young couples
who want to enter into marriage and by ignorant, negligent, or
dishonest judges by circumventing the law which also at the same time
could promote the probability of perjury.

In addition, those parties contracting into marriage ages eighteen

to twenty-one (18-21) would need to secure parental consent18.
Furthermore, It can be asserted that in order to inject improvements for
a better Article 34 of the Family Code and to address the
aforementioned questions and issues, it would also entail to change the
minimum age of would-be couples who can avail of Article 34 in the
proposed amendment. Hence, a recommended minimum age shall be
identified and expressly qualified in the improved version of the Article.
Otherwise, Article 14 would be rendered useless and exclusive only to
those emancipated by the age of eighteen who did not cohabit. Article
14 of the Family Code states that:

Article 14. In case either or both of the contracting

parties, not having been emancipated by a previous marriage,
are between the ages of eighteen and twenty-one, they shall,
in addition to the requirements of the preceding articles,
exhibit to the local civil registrar, the consent to their
marriage of their father, mother, surviving parent or
guardian, or persons having legal charge of them, in the order
mentioned. Such consent shall be manifested in writing by the
interested party, who personally appears before the proper
local civil registrar, or in the form of an affidavit made in the
presence of two witnesses and attested before any official

16 Id.
17 A.M. No. MTJ-00-1329, March 8, 2001.
18 Article 14 of the Family Code.

7
 authorized by law to administer oaths. The personal
manifestation shall be recorded in both applications for
marriage license, and the affidavit, if one is executed instead,
shall be attached to said applications.

In other words, by changing the minimum age requirement, the

rationale of Article 14 would be justified - which is an advantageous
effect from the amendment to be made on Article 34. Otherwise, if
Article 34 would retain its status quo, Article 14 would not be applicable
to those would-be couples who have lived as husband and wife without
the benefit of marriage since. Actualizing the change in the minimum
age required in order to avail of Article 34 of the Family Code would
justify the absence of parental consent on cases wherein those between
ages eighteen to twenty-one would have contracted into marriage
without such parental consent.

However, Article 14 is not the only provision which can be

affected by the proposed amendment in the minimum age of would-be
couples who can avail of Article 34 under the Family Code. Article 16
would also be rendered useless by Article 34 for it does not apply to 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
and nonetheless such contracting parties would still be issued a
marriage license for so long as they have executed an affidavit before
any person authorized by law to administer oaths thus, skipping the
requirement to undergo marriage counseling. In contrast, any
contracting party between the ages of eighteen to twenty-one shall still
have the need to comply with the requirements stated under Article 16
of the Family Code otherwise failure to attach a certificate that they
have undergone marriage counseling shall suspend the issuance of their
marriage license for a period of three months from the completion of
the publication of the application19.

Consequently, the essence of Articles 14 and 16 of the Family

Code would be ultimately justified to maximize its very purpose and
intent so as to make it more inclusive and equal both to those would-be
spouses who did and did not live as husband and wife.

Lastly, the advantages of the proposed amendment of Article 34

discussed earlier would also benefit the Civil Registry and the Judiciary
in the long run. The elimination and streamlining of the possible
circumvention of the law would prevent a number of future litigation

19 Article 16 of the Family Code.

8
that would arise from eventual discovery non-compliance of Article 34
that would render marriages voidable or void ab initio. A popular adage
that says “prevention is better than cure” is best exemplified in this
situation. This will not only save members of the Judiciary from
additional work, but also the members of the Civil Registry since the
local civil registrar can only note down of his findings and the
particulars thereon in case of any impediment and nonetheless duty
bound to issue the license20.

Conclusion and Recommendation

Therefore, in the case at hand, it is submitted that twenty-three

(23) is the recommended minimum age before would-be couples can
avail of the provisions of Article 34 in the proposed amendment. Hence,
marriage applicants whose age is eighteen and above but below twenty-
three (18-22) are necessarily required to secure a marriage license
regardless whether both parties have already lived as husband and wife
prior to the application.

From the current provision, this paper would like to propose an

improved version which provides:

Article 34. No license shall be necessary for the

marriage of a man and a woman, both with the age of at least
23 years, and who have lived together as husband and wife
for at least five years and without any legal impediment to
marry each other during the entire years of cohabitation
characterized by continuity and exclusivity. 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.

Article 1 of the Family Code states that, “Marriage is a special

contract of permanent union between a man and a woman entered into in
accordance with the law for the establishment of conjugal and family
life…” The seemingly simple phrase of “in accordance with the law”
cannot get any clearer. It only means that contract to marriage must
always abide by the rule of law for nothing is stated in Article 1 that the
law allows marriage to be subject to any stipulation only except on
marriage settlements on property relations. And so, any irregularity,

20 Article 18 of the Family Code.

9
defect, or absence of requisites compelled by law for marriage
applicants to comply with must be given utmost respect in relation to
the very definition of marriage.

Though it is a general principle that decisions and rulings of the

court must lean towards the validity of marriage21, we as future
interpreters of the law, must ensure and take cognizance that a law
must not be interpreted in such a way that it would lead to absurdity so
only to satisfy the general principle from the declaration of the Civil
Code that everything must be ruled towards the validity of marriage.
The framers of our laws are not perfect and it is not a remote possibility
that some statutes or provisions made by the legislature would have
blind spots on it.

Hence, the very purpose of the proposal to amend Article 34 of the

Family Code is justified.

21 Article. 220. In case of doubt, all presumptions favor the solidarity of the family. Thus, every
intendment of law or fact leans toward the validity of marriage, the indissolubility of the marriage
bonds, the legitimacy of children, the community of property during marriage, the authority of
parents over their children, and the validity of defense for any member of the family in case of
unlawful aggression.
10