Judges Cannot Notarize Cohabitation Affidavits for Marriages They Solemnize

A municipal trial court judge who notarizes affidavits of cohabitation for parties whose marriage he will solemnize commits gross ignorance of the law. In Tupal v. Judge Rojo (A.M. No. MTJ-14-1842, February 24, 2014), the Supreme Court suspended a Bacolod City judge for six months for this practice, clarifying the limits of a judge's authority to act as a notary public ex officio.

The Case: "Package Marriages" in Bacolod

Judge Remegio V. Rojo, presiding judge of the Municipal Trial Court in Cities, Branch 5, Bacolod City, allegedly solemnized marriages without the required marriage license. Instead, he notarized affidavits of cohabitation for the contracting parties—on the very day of their marriages. The complainant, Rex M. Tupal, submitted nine such affidavits, all notarized by Judge Rojo.

Under Article 34 of the Family Code, parties who have lived together as husband and wife for at least five years and have no legal impediment to marry are exempt from the marriage license requirement. Instead, they must execute an affidavit of cohabitation sworn before any person authorized by law to administer oaths.

The Issue

The central question was whether a judge, acting as a notary public ex officio, may notarize affidavits of cohabitation for parties whose marriage he will solemnize.

The Ruling: A Clear Prohibition

The Supreme Court answered with a firm no. The Court held that affidavits of cohabitation are not connected with a judge's official functions and duties as a solemnizing officer.

Circular No. 1-90 Limits Judicial Notarization

Circular No. 1-90 (February 26, 1990) allows municipal trial court judges to act as notaries public ex officio only for documents "connected with the exercise of their official functions and duties." The Circular also requires judges to certify that no lawyers or notaries public are available in their territorial jurisdiction before notarizing documents.

Judge Rojo satisfied neither condition. He notarized nine private documents—the affidavits of cohabitation—without the required certification.

The Solemnizing Officer's Duty Is to Examine, Not Notarize

The Court explained that a judge's only duty regarding an affidavit of cohabitation is to examine whether the parties genuinely lived together for at least five years without legal impediment. Administrative Order No. 125-2007 (Guidelines on the Solemnization of Marriage by the Members of the Judiciary) requires the solemnizing officer to personally interview the parties and examine the affidavit—but never to notarize it.

The Court reasoned that if a judge notarizes the affidavit, he cannot objectively review it later. Article 34 of the Family Code and the Guidelines both assume that the notarizing officer and the solemnizing officer are two different persons.

Notarization Violations

The Court also found that Judge Rojo violated the 2004 Rules on Notarial Practice. He did not state that the parties were personally known to him or that they presented competent evidence of identity. The Court rejected his argument that interviewing the parties made them "personally known" to him—personal knowledge requires actual acquaintance, not a single interview.

No Defense of Good Faith or Common Practice

The Court dismissed Judge Rojo's defenses. Good faith does not apply when the legal rules are "simple and elementary." The fact that other judges engaged in the same practice did not make it legal—violations of law are not excused by contrary practice.

Practical Takeaways

• Judges cannot notarize affidavits of cohabitation for marriages they will solemnize—the notarizing officer and solemnizing officer must be different persons.
• Municipal trial court judges may notarize documents ex officio only when directly connected to their official duties and only if no lawyers or notaries are available in their jurisdiction.
• Parties seeking an Article 34 marriage should have their affidavit of cohabitation notarized by a regular notary public before approaching the solemnizing officer.
• Notarial rules require that the notary personally know the signatory or require competent evidence of identity—appearing before the notary is not enough.
• Judges who violate these rules face administrative sanctions, including suspension or dismissal.

This article is general information and not legal advice. For your specific situation, consult a lawyer or ask ASG Legal AI.