Municipal trial court judges cannot notarize affidavits of cohabitation of parties whose marriage they will solemnize.
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A marriage license is issued by the local civil registrar to parties who have all the qualifications and none of the legal disqualifications to contract marriage.[27] Before performing the marriage ceremony, the judge must personally examine the marriage license presented.[28]
If the contracting parties have cohabited as husband and wife for at least five years and have no legal impediment to marry, they are exempt from the marriage license requirement.[29] Instead, the parties must present an affidavit of cohabitation sworn to before any person authorized by law to administer oaths.[30] The judge, as solemnizing officer, must personally examine the affidavit of cohabitation as to the parties having lived together as husband and wife for at least five years and the absence of any legal impediment to marry each other.[31] The judge must also execute a sworn statement that he personally ascertained the parties’ qualifications to marry and found no legal impediment to the marriage.[32] Article 34 of the Family Code of the Philippines provides:
Art. 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.Section 5 of the Guidelines on the Solemnization of Marriage by the Members of the Judiciary also provides:
Sec. 5. Other duties of solemnizing officer before the solemnization of the marriage in legal ratification of cohabitation. — In the case of a marriage effecting legal ratification of cohabitation, the solemnizing officer shall (a) personally interview the contracting parties to determine their qualifications to marry; (b) personally examine the affidavit of the contracting parties as to the fact of having lived together as husband and wife for at least five [5] years and the absence of any legal impediments to marry each other; and (c) execute a sworn statement showing compliance with (a) and (b) and that the solemnizing officer found no legal impediment to the marriage.Based on law and the Guidelines on the Solemnization of Marriage by the Members of the Judiciary, the person who notarizes the contracting parties’ affidavit of cohabitation cannot be the judge who will solemnize the parties’ marriage.
As a solemnizing officer, the judge’s only duty involving the affidavit of cohabitation is to examine whether the parties have indeed lived together for at least five years without legal impediment to marry. The Guidelines does not state that the judge can notarize the parties’ affidavit of cohabitation.
Thus, affidavits of cohabitation are documents not connected with the judge’s official function and duty to solemnize marriages. Notarizing affidavits of cohabitation is inconsistent with the duty to examine the parties’ requirements for marriage. If the solemnizing officer notarized the affidavit of cohabitation, he cannot objectively examine and review the affidavit’s statements before performing the marriage ceremony. Should there be any irregularity or false statements in the affidavit of cohabitation he notarized, he cannot be expected to admit that he solemnized the marriage despite the irregularity or false allegation.
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