Actual five-year cohabitation necessary

The Family Code requires that a marriage license be obtained prior to getting married. Absent that, any marriage entered into shall be deemed null and void. The law, however, makes an exception: if the parties have lived together as husband and wife for a continuous period of five years prior to the marriage.

In one case, the parties who married did not obtain a marriage license prior to the marriage. Rather, they executed an affidavit stating that they had lived together as husband and wife for five years prior to the marriage.

A few years later, the husband filed for a declaration of nullity of his marriage to his wife. The ground was the absence of a marriage license. He alleged that the cohabitation, despite the execution of an affidavit to the contrary, had not lasted for five continuous years. He said he had left for Israel to work for several years, leaving behind his partner in the Philippines.

Accordingly, the trial court granted the petition for want of the required marriage license. The Republic of the Philippines, through the Office of the Solicitor General, however, opposed the declaration of nullity.

It opined that there was continuous cohabitation for five years despite the interruption caused by the period of work in Israel. It contended that cohabitation does not have to be actual. The five-year requirement was complied with as long as the party had the intention to maintain the relationship and to return to his partner after working abroad.

Both the trial court and the Court of Appeals thumbed down the State’s argument. The Republic elevated the matter to the Supreme Court. The High Court ruled that the cohabitation must be continuous and discussed how the relationship within that period must be maintained.

“Nifzal v Bayadog instructs that Article 34 of the Family Code refers to a five-year period of common-law cohabitation by the parties as ‘husband and wife,’ where the relationship would have been considered a legal marital union had it not been for the absence of a marriage.

“The five-year cohabitation period is reckoned from the date immediately preceding the celebration of the marriage. It must be exclusive, meaning no third party was involved at any time within the five-year period, and continuous, meaning the period must be unbroken.

“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. Evidently, Article 34 of the Family Code contemplates common-law unions, which are not recognized as valid marriages in the Philippines. Intermittent cohabitation, where the parties frequently separated, maintained separate residences and did not deport themselves to the public as husband and wife, would not result in a common-law marriage.

“Meanwhile, temporary absence or physical separation of the parties does not interrupt the continuity of the cohabitation, provided that the absence or separation was by mutual consent or the arrangement was for the purpose of convenience, health, business or any other reason, and there is no intention on either party to abandon or desert the other.

“Thus, in a case where the putative common-law husband left the common dwelling only to oversee a property located in a different locality, and where there was no intention to abandon the putative common-law wife, the continuity of the cohabitation was deemed uninterrupted.

“Similarly, brief periods of absence or separation do not break the continuity of the cohabitation if the putative common-law husband was away for work in another locality but retained the dwelling with the putative common-law wife as his residential address, as the latter demonstrates an intention to return and maintain the cohabitation.

“Still, in cases where the temporary absence of one party was not deemed a break or interruption in the cohabitation period, it was first established that the putative spouses did in fact cohabit or live together as husband and wife, and that they intended to continue their relationship despite their physical separation, as demonstrated by the parties’ common residence, joint bank account and shared expenses, among others.

“To ‘cohabit’ means ‘to dwell or live together as husband and wife; to live together as husband and wife although not legally married; to live together in the same house, claiming to be married; to live together at bed and board.’ The cohabitation must be characterized by regularity as distinguished from occasional, transient affairs or encounters.”

The facts and quoted redacted portion of the decision are from SC G.R. 262653 (24 February 2026).