Article 34 of the Family Code: No license after five years of living together
Status: In force
What does Article 34 say?
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.
What does it mean in plain language?
A man and a woman who have lived together as husband and wife for at least five years can marry without a marriage license, if neither of them had a legal impediment to marry the other. They must state these facts in an affidavit. The Supreme Court has said the five years must be the years right before the wedding, continuous and exclusive, and free of any impediment the whole time.
Article 34 is one of the exceptions to the license requirement in Article 3.
How does it work in real life?
Nestor and Celia: eight years, both single
Nestor and Celia, both single, have lived together as husband and wife for eight years and have two children. They want to marry before a judge. They may do so without a license under Article 34, by stating the facts in an affidavit. The judge must also state under oath that he found no legal impediment. This is a made-up example.
Rico and Tess: a first wife who died two years ago
Rico and Tess have lived together for six years. But Rico's first wife died only two years ago. For four of the six years, Rico still had a subsisting marriage. Following Niñal v. Bayadog, their cohabitation was not free of impediment for the full five years before the wedding, so they cannot use Article 34. They need a marriage license. This is a made-up example.
Ivy and Jon: a long break
Ivy and Jon lived together for four years, separated for two years, and then lived together again for one year. Under Niñal v. Bayadog, the five years must be continuous and immediately before the wedding. Their cohabitation does not meet that rule. This is a made-up example.
These examples only show how the rule works. They are not advice for a real case.
What does this mean in practice?
- The affidavit is a sworn statement, but it does not by itself make the marriage valid. If the conditions were not really met, a court may declare the marriage void.
- Article 34 is not the only license exemption. Others cover a party at the point of death (Article 27), a party with no means of transportation to reach the civil registrar (Article 28), and marriages among Muslims or ethnic cultural communities under their own rites (Article 33).
- Couples who do not qualify follow the usual license rules: see marriage license requirements. A license is valid for 120 days (Article 20).
- Property of couples who lived together without a valid marriage is covered in live-in partners' property.
What are the conditions of Article 34?
There are three, all in the article:
- Five years together. The couple lived together "as husband and wife for at least five years".
- No legal impediment. They had no "legal impediment to marry each other". An impediment is anything that stops a marriage, for example an existing marriage of one partner, or being under 18.
- Affidavits. The couple state these facts in an affidavit before a person authorized to administer oaths. The solemnizing officer must also state under oath that he checked their qualifications and found no legal impediment.
How did the Supreme Court read the five-year rule?
In Niñal v. Bayadog (2000), the Supreme Court looked at a man who married his second wife without a license, using an affidavit that they had lived together for five years. His first wife had died only about twenty months before the second wedding. The case was decided under Article 76 of the Civil Code, which the decision notes is now Article 34 of the Family Code.
The Court said:
- the five years are counted back from the day of the wedding: "This 5-year period should be the years immediately before the day of the marriage";
- the cohabitation must be exclusive (no third party at any time in the five years) and continuous (unbroken);
- the couple must have been free to marry each other during the whole period. Living together while one of them still had a subsisting marriage does not count, even if that partner was already separated in fact.
Because the couple did not meet the rule, the exemption did not apply, and the Court held that the second marriage was void for lack of a license. The case had been filed after the man's death by his children from his first marriage. The trial court had dismissed it; the Supreme Court reversed the dismissal and reinstated the case.
What happens if the couple did not really qualify?
Then the marriage was solemnized without a license and without a valid exemption:
(3) Those solemnized without license, except those covered the preceding Chapter;
A false affidavit does not save the marriage. Read more in Is a marriage without a license valid?
Which Supreme Court rulings are relevant?
Frequently asked questions
Can we marry without a marriage license if we have lived together for five years?
Article 34 of the Family Code allows it when a man and a woman have lived together as husband and wife for at least five years without any legal impediment to marry each other. The couple state these facts in an affidavit, and the solemnizing officer also states under oath that he found no legal impediment.
Do the five years have to be right before the wedding?
Yes. In Niñal v. Bayadog (2000), the Supreme Court said the five years are counted back from the day of the marriage and must be the years immediately before it, with continuous and exclusive cohabitation. The case was decided under Article 76 of the Civil Code, the older rule that is now Article 34.
Do years count while one partner was still married to someone else?
No. Niñal v. Bayadog (2000) said the couple must have been free to marry each other during the whole five years. Living together while one partner still had a subsisting marriage does not count, even if that partner was separated in fact.
What happens if the affidavit is false?
If the couple did not really qualify, the exemption does not apply, and the marriage is one solemnized without license. Article 35(3) makes such a marriage void.
Is a marriage under Article 34 a real, valid marriage?
Yes, if the conditions are true and the other requisites of marriage are present. Article 3(2) requires a valid marriage license except in the cases provided for in Chapter 2, and Article 34 is one of those cases.
General information, not legal advice. For your case, ask a lawyer, the Public Attorney's Office (PAO) or the agency.
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