Psychological Incapacity (Article 36, Family Code of the Philippines): More Definitive Guidelines

Among the grounds for annulment of marriage, psychological incapacity is the more (if not the most) commonly used. It is also one of the more controversial provisions of the Family Code. The first set of guidelines were provided in the 1995 Santos case. In the subsequent case of Molina, the Supreme Court provided more definitive guidelines in the interpretation and application of Article 36:

Definitive Guidelines for Psychological Incapacity


The burden of proof to show the nullity of the marriage belongs to the plaintiff. Any doubt should be resolved in favor of the existence and continuation of the marriage and against its dissolution and nullity. This is rooted in the fact that both our Constitution and our laws cherish the validity of marriage and unity of the family. Thus, our Constitution devotes an entire Article on the Family, recognizing it “as the foundation of the nation.” It decrees marriage as legally “inviolable,” thereby protecting it from dissolution at the whim of the parties. Both the family and marriage are to be “protected” by the state.

The Family Code echoes this constitutional edict on marriage and the family and emphasizes their permanence, inviolability and solidarity.


The root cause of the psychological incapacity must be (a) medically or clinically identified, (b) alleged in the complaint, (c) sufficiently proven by experts and (d) clearly explained in the decision. Article 36 of the Family Code requires that the incapacity must be psychological — not physical, although its manifestations and/or symptoms may be physical. The evidence must convince the court that the parties, or one of them, was mentally or psychically ill to such an extent that the person could not have known the obligations he was assuming, or knowing them, could not have given valid assumption thereof. Although no example of such incapacity need be given here so as not to limit the application of the provision under the principle of ejusdem generis, nevertheless such root cause must be identified as a psychological illness and its incapacitating nature fully explained. Expert evidence may be given by qualified psychiatrists and clinical psychologists. [See: Expert Witnesses in Psychological Incapacity Cases]


The incapacity must be proven to be existing at “the time of the celebration” of the marriage. The evidence must show that the illness was existing when the parties exchanged their “I do’s.” The manifestation of the illness need not be perceivable at such time, but the illness itself must have attached at such moment, or prior thereto.


Such incapacity must also be shown to be medically or clinically permanent or incurable. Such incurability may be absolute or even relative only in regard to the other spouse, not necessarily absolutely against everyone of the same sex. Furthermore, such incapacity must be relevant to the assumption of marriage obligations, not necessarily to those not related to marriage, like the exercise of a profession or employment in a job. Hence, a pediatrician may be effective in diagnosing illnesses of children and prescribing medicine to cure them but may not be psychologically capacitated to procreate, bear and raise his/her own children as an essential obligation of marriage.


Such illness must be grave enough to bring about the disability of the party to assume the essential obligations of marriage. Thus, “mild characteriological peculiarities, mood changes, occasional emotional outbursts” cannot be accepted as root causes. The illness must be shown as downright incapacity or inability, not a refusal, neglect or difficulty, much less ill will. In other words, there is a natal or supervening disabling factor in the person, an adverse integral element in the personality structure that effectively incapacitates the person from really accepting and thereby complying with the obligations essential to marriage.


The essential marital obligations must be those embraced by Articles 68 up to 71 of the Family Code as regards the husband and wife as well as Articles 220, 221 and 225 of the same Code in regard to parents and their children. Such non-complied marital obligation(s) must also be stated in the petition, proven by evidence and included in the text of the decision.


Interpretations given by the National Appellate Matrimonial Tribunal of the Catholic Church in the Philippines, while not controlling or decisive, should be given great respect by our courts. It is clear that Article 36 was taken by the Family Code Revision Committee from Canon 1095 of the New Code of Canon Law, which became effective in 1983 and which provides:

“The following are incapable of contracting marriage: Those who are unable to assume the essential obligations of marriage due to causes of psychological nature.”

Since the purpose of including such provision in our Family Code is to harmonize our civil laws with the religious faith of our people, it stands to reason that to achieve such harmonization, great persuasive weight should be given to decisions of such appellate tribunal. Ideally — subject to our law on evidence — what is decreed as canonically invalid should also be decreed civilly void.

This is one instance where, in view of the evident source and purpose of the Family Code provision, contemporaneous religious interpretation is to be given persuasive effect. Here, the State and the Church — while remaining independent, separate and apart from each other — shall walk together in synodal cadence towards the same goal of protecting and cherishing marriage and the family as the inviolable base of the nation.


The trial court must order the prosecuting attorney or fiscal and the The trial court must order the prosecuting attorney or fiscal and the Solicitor General to appear as counsel for the state. No decision shall be handed down unless the Solicitor General issues a certification, which will be quoted in the decision, briefly stating therein his reasons for his agreement or opposition, as the case may be, to the petition. The Solicitor General, along with the prosecuting attorney, shall submit to the court such certification within fifteen (15) days from the date the case is deemed submitted for resolution of the court.

Illustrative cases:

In Antonio vs. Reyes (G.R. No. 155800, 10 March 2006), the Supreme Court sustained the nullity of the marriage based on the psychological incapacity of the wife (respondent). As concluded by the psychiatrist, the wife’s repeated lying is abnormal and pathological, and amounts to psychological incapacity (for the “digest” or a more detailed discussion of the case, click here).

On the other hand, in Republic vs. Quintero-Hamano (G.R. No. 149498, 20 May 2004), the wife alleged taht her husband, a Japanese, failed to meet his duty to live with, care for and support his family. He abandoned them a month after the marriage. The wife sent him several letters but he never replied. He made a trip to the Philippines but did not care at all to see his family. However, while the husband’s act of abandonment was doubtlessly irresponsible, it was never alleged nor proven to be due to some kind of psychological illness. Aside from the abandonment, no other evidence was presented showing that the husband’s behavior was caused by a psychological disorder. It’s not enough to prove that a spouse failed to meet his responsibility and duty as a married person; it is essential that he must be shown to be incapable of doing so due to some psychological, not physical, illness. Although, as a rule, there was no need for an actual medical examination, it would have greatly helped the wife’s case had she presented evidence that medically or clinically identified his illness. This could have been done through an expert witness.


26 thoughts on “Psychological Incapacity (Article 36, Family Code of the Philippines): More Definitive Guidelines

  1. Avatarnylever

    gud pm atty.
    My husband file the petition of annulment on grounds of psychological incapacity, i received the petition last march 27 and failed to make a reply we had our pre tial hearing last may 10 and was given another 15 days to reply because i oppose his petition. i was also given a pao lawyer, the judge found out that my husband and i still living together by the way he file the case in Imus Cavite he is using the address of the room he rented somewhere in cavite but all his billing statement address in our house in Mandaluyong the judge told him that it is only his physical residence. I have problem now and may i request a reply as soon as possible, my lawyer and i want to file a motion to dismiss because of the jurisdiction. She was too busy to attend on some of her cases i am jobless my lawyer want me to have my psychological evaluation done, but i dont have the money to pay the psychologist. Is it necessary to have this evaluation done for filling for motion to dismiss, its seem we have no time left and she told me that she is going to file for motion to admit because we run out of time, am going back and forth there. could you help me on this, what shall i do, is there any other option for me.

  2. Atty. FredAtty. Fred Post author

    nylever, I’m terribly sorry if I can’t be of any help. Fact is, you have a lawyer, and it is unethhical to second-guess the decision of your lawyer on this matter. Nevertheless, why don’t you discuss with your lawyer that since there’s no default in this kind of cases, perhaps you can still try to raise this matter.

  3. Pingback: Psychological Incapacity and Annulment at Atty-at-Work

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  5. Avatarabcdef

    Good pm attorney. I would like to ask if my reasons are enough grounds for filing a legal separation. I am 23 yrs of age and my husband is 24. We already have a kid. Even before we got married he is physically and verbally abusing me. His family also doesn’t like me. They fabricate stories that worsen the situation. My husband also keeps on saying that he doesn’t love me any longer. Would that be a ground for psychological incapacity? Do you think I will have a good case? Hoping that you can help me from my problem. Thank you so much.

  6. Avatarcel

    Gud pm atty… my friend was abandoned by her husband for around 20 yrs now, they have no communication or whatsoever, and his whereabouts are unknown.. She has no plans of remarrying..She wants to break the tie to his long lost husband..what is the best remedy that should be resorted by her and what is the ground of that remedy? .. We will will wait for your reply..pls


  7. Avatarbri817

    i would like to know if my case would be acceptable ground for annulment of my marriage…

    for 10 years i seemed to put up a mask on myself to get by with the marriage.. i became stiff and serious almost for 10 years… i seldom smile and dont even joke with my children… i apparently became like a robot just to keep the marriage going… but inside me hostility is starting to grow… i dont talk to my husband because i know i will be rejected only… i dont talk much about my feelings… i just pent it up until i started to resent him… most especially when we talk we always end up fighting… his greed… taking all that is mine for his credit caused a lot of pain in me… i tried to keep the marriage happy but his continued neglect of my person seemed to push me further to hedge myself with an attitude so serious and unapproachable… when i am with my sisters i can feel a transformation of myself… i begin to see my old self… i can laugh naturally… i can crack jokes… it was nice seeing me coming out again… but once my husband around that “me” starts to curl up inside me and would not come out… then silence starts to dominate the atmosphere… for a long time i even seem to act like a lesbian… not a feminine display of myself… i needed to be hard… so as not to show how i am as woman or else i would feel sorry for myself…. this had been my situation for 10 years… always inside of me contradicting him and not agreeing with his views inside me… i let things happen just like a robot so as not to create argument anymore… but this had taken its toll on me… i started to feel like bursting… i long for a sense of freedom…. something in me as if would always like to burst out and my “me” would like to resurface again… now i have walked out of my marriage for 3 years already… now i wanted to file for annulment… i do hope i could receive enlightenment from you? thank you

    1. AvatarSte

      Hi bri817,

      I really adore you for that 10 years. We have the same situation but we only got married for only 4 mos now and yet I am on this site seeking answer to a possible solution. I admire your tolerance. Hope I can possess that even just a modicum to save this rocking marriage. It as all fucked up now. There should be the one who will give way but the question is “How Long”…

  8. Avataryelrish

    Dear Atty,

    I got married last October 2000, I was 19 then and my husband is 18. We got married 2 weeks before he left for japan,he was sponsored by my mother-in-law. He’s coming home for vacation only for 10 dys each year. In 2002 he went home secretly together with a japanese lady who at that time he’s living in with. One of their relative was concerned enough to tell me about it. While living with that girl he stopped sending financial support to us, and that is when the problem arised. I decided to work to support the needs of my son. Eventually his relationship with that japanese lady didn’t worked. Then he met another japanese girl with whom he had a child after 5 yrs of living together. Now, last thing I heard, he’s in jail due to drug related case. It has been 11 years of being separated. I think it’s about time to start a new life and have a family.

    Is it possible to file for an annulment case and on what grounds. By the way, I’m currently working in Qatar and he is jailed in Japan, he’s also using a different name (passport, visa, etc). Need your advice on this matter. Thank you and hope to hear from you soon.

  9. AvatarKennethJohn

    Good Day Attorney,

    i have a sister… her husband flew to Malaysia sometime in 2008. after 6 months they never ever had communications given to the fact that they have their communication gadget like cellphone, an internet, to which i believe her husband is refusing. sometime last year we had found out that their is this common girl in her husband Facebook to which on an account was seen.. Until now they never ever have a communication… i dont if if it was a hearsay to say that her husband is with the girl or something.. we got nothing to prove if her husband is with another girl but one thing for sure, He aint got no communications after 6 months he left until now.

    Any thoughts on this?

    Thanks Much and Best Regards.

  10. AvatarAnnrose

    Good day Atty
    I received a letter fr a Psychologist re the case filed by my husband for the nullity of our marriage. We have been seperate for 13 yrs now.In the letter, it stated that I must undergo a Psychological Test and must contact her. I haven’t received a copy of the case filed,though. What if don’t wanna undergo a Psychological Test? What will be the consequences?
    Thanks and God bless


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