Pabling got married to Dulce on September 26, 1974. Out of their marriage were born three girls and two boys, the eldest being Nina, followed by Lina, Dina, Art and Jun. Siring 5 children however did not stop Pabling from his womanizing way of life. Barely six years into their marriage, Pabling left his family and started cohabiting with Amor. Since then the family has been wracked with frequent quarrels between Pabling and Dulce everytime they would see each other. This led to a tragedy resulting in the death of Dulce in the hands of Pabling who shot her.
While the case against Pabling for the death of Dulce was still pending, and barely one year and 8 months thereafter, Pabling married Amor. Their marriage was celebrated on December 11, 1986 without a marriage license. In lieu thereof, they executed an affidavit stating that they have lived together as husband and wife for at least five years and were thus exempt from securing a marriage license under Article 76 of the Civil Code, the law in force at that time. Pabling’s children just had to accept everything out of sheer ignorance and because they were still minors. Eleven years later, or on February 19, 1997, tragedy struck again in the family. Pabling died in a car accident.
Believing that the second marriage of Pabling to Amor would affect their successional rights, Nina in her own behalf, as she was then already of age, and as guardian of her sisters and brothers filed a petition for declaration of nullity of the marriage of Pabling and Amor alleging that said marriage is void for lack of marriage license. Amor however contended among others that her marriage to Pabling need no marriage license as they have lived together for five years prior thereto.
Was Amor correct?
No.
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 marriage. In other words the parties cohabiting are capacitated to marry each other. This 5-year period should be a period of cohabitation characterized by exclusivity – meaning no third party was involved at any time within the 5 years; and continuity - that is unbroken. Otherwise if that period of 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 placing them in the same footing with those who lived faithfully with their spouse.
In this case, even assuming that Pabling and his first wife Dulce had separated in fact, and thereafter both Pabling and Amor had started living with each other lasting for five years, their five year cohabitation was not the cohabitation contemplated by law. Pabling had a subsisting marriage at the time he started cohabiting with Amor. It is immaterial that when they lived together, Pabling was already separated from his lawful wife. The subsistence of marriage even where there was actual severance of the filial companionship between the spouses cannot make any cohabitation by either spouse with a third party as a cohabitation between "husband and wife" within the contemplation of the law exempting marriage license (Ninal vs. Bayadog 328 SCRA 126).
Thus in the Family Code, it is now expressly provided that no marriage license is necessary only for that "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" (Art. 34)