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. Avatartitart

    Dear Atty,

    I would like to consult if my wife’s case can be qualified for PSYCHOLOGICAL INCAPACITY for being ONIOMANIA or SHOPAHOLIC which makes her unfit to be a housewife. Bilang may-bahay, ang mga bayarin sa bahay ay kanyang hinahawakan subalit ito ay kanyang nilulustay.
    Narito ang ilan sa kanyang mga paglulustay:
    – Hindi tamang pagbayad sa aming mga bills tulad ng MERALCO, CABLES etc…
    – Pagsangla sa aming mga alahas
    – Pagukuha sa mga ipon at allowance ng aming mga anak
    – Pagkupit sa Tuition Fee ng aming mga anak
    – Pag-utang sa Lending Institution gamit ang aming mga kasangkapan sa bahay bilang collateral
    – Paglubog sa utang sa Credit Card (BPI) at ng aking tulungan ay kumuha na naman ng bagong Credit Card (RCBC) at umabot agad sa Credit Limit na P15,000 sa kangyang unang buwan pa lamang
    – Pagsinungaling sa pagpapaduktor ng kanyang ama para lang makahingi ng pera sa akin
    – Pagnanakaw sa pera sa bangko ng kanyang OFW na ina (they are in join-account) na umabot sa dalawang-daang libong piso
    – Pagdaya sa aking pirma upang maka-utang sa bangko (PNB) silang mag-ina ng P2 milyon
    – Kaliwat-kanan na utang sa ibat-ibang mga tao gamit na kasinungalinagn na kagipitan ng aming pamilya na hindi naman tutoo.

    Salamat po…

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  4. Avatar35

    Good day.

    Atty. I would like to ask, I have been married for more than a year now and I have noticed that my wife is not the whom I thought she would be. We have conflicts from the way we handle things to the way we think. She acts like a child when faced with stress and blames me for everything that goes wrong when she doesn’t get what she wants . she seldom has time for me after work and just dozes off to sleep at times. I’m also starting to lose physical interest in her since she doesn’t really do much to maintain /improve her figure. It is so much so that I’m not interested in her anymore which has led me to engage in an extra marital affair. What I would want to know is that is there anything that happened in the 1st year our marriage that I can use to have it annulled? Or is there enough evidence to haven it annulled? I could really use your advice. That I spend with her, I’m starting to resent her even more and more.

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  6. Avatarscorpio lady

    dear atty,
    Im marry 1997 in a civil wedding then separated 1999 until now at the present 2015 ,so 16 years no communications,nothing at all,just recently I knew he has a living in partner in quezon city for 16 yrs now…he is a seaman i need to file nullity of marriage?he never support me financially at all…so what grounds should I use for filling a nullity of marriage?he abandone me,he betray me ….pls help me ..

  7. Avatarmarielyn

    i am married since 2003. but me and my husband is living in since i was 16 years old, and he was 20. i had to make that decision because he got me pregnant at the age of 16, while i was studying and in fact graduating in high school. i graduated high school while being 4mos pregnant with my firstborn. now, i have have 3 kids. the reason why i want to file an annulment is that i am tired of being abused, physically, emotionally, and verbally. he had an affair last 2004, and had a child wit that unnamed woman. i found out because he admitted that to me. unfortunately, i cant locate the woman and i have no evidence to support my claim. i have never got a job ever since because he made sure that i stay in the house to take care of the kids and to prevent me for having my own money so that i could be financially dependent to him. whenever i go out and buy something like groceries, and i fail to ask permission or let him know, he will hit me or accused me having an affair. so to avoid that, i will buy grocery with him, or take my kids with me wherever i plan to go, like paying bills, or go to the market, while he is at home drinking with his friends. he repeatedly punch, mauled, and kicked me and kids with the slightest reasons, or no reasons at all. he even got a knife and sit on my very heavy tummy because i was 8 months pregnant at that time with my youngest because i was just merely asking him to tone down the volume of the stereo and he is very drunk at that time. the kids, witnessed all of my sufferings. and to my grief, they also was a victim of my husbands abused. now i managed to find a way to finally get out of my miserable life. and it breaks my heart that my kids are still with him, since i have no capacity to actually bring them with me due to financial reasons. i am jobless and still processing my papers because i plan to work abroad. please help me sir. i really am in need of an annulment that would basically free me from my very unfortunate past, and move on in life provided i can take my kids with me. for after everything that’s being settled, i want a full custody of my children. i really need to know what to do, how to do and how much will i need to finance my annulment. i will appreciate any response sir, and i am thankful for the time that you actually read my concerns. Thank you very much sir, and more blessings po.


  8. AvatarHazel

    Goo day!

    I just want to ask, if my partner always saying bad words and any suspicious to me and even to my family. This can consider for annulment?

  9. AvatarRICHARD C

    Hi, my name is Richard C. I was born in the in subic bay my father was a navy officer, philippino mother, Nov, 1964. Moved to USA 1969. my philippino friends say ,philippinos do not believe in divorce or is it because of the catholic faith do not believe in divorce. Divorce does happen , but it designed to be a difficult process in philipines ,is that correct? Why so exspensive to divorce in philippines it only cost us $50 dollars in USA for simple divorce. I do not believe in divorce,my ex is budist, I excepted divorce to stay friends,but my ex and I
    divorced after 25 yrs ,5 kids ,she is my best friend now, we cannot be enemies after raising kids together.Divorce rate in America is 60% unfortunately.i felt guilty for many years,I thought I let my catholic faith down. there is nothing wrong with divorce in my oppinion if both sides are still friends ,Dont you agree?

  10. AvatarJenny

    I just want to ask your opinion about my case.I’m Jenny,married but umalis ako s bahay ng asawa ko.gusto ko na kc makipaghiwalay kasi sobrang hindi ko sya makasundo.We have 3 children, my youngest is just 7months.kasal kmi s pari.Kasama namin s bahay ang nanay nya.Lagi kasi kmi nag-aaway at hindi ko sya makasundo s maraming bagay.Umalis kmi ng bahay kasama mga anak ko.Masyado syang seloso.Last na nag-away kami hindi ko na natiis.Sinabihan p nya ako n my lalaki ako dahil marami daw ako kchat s cellphone.Nakikipagbalikan sya ng maraming beses.Minsan nagbibigay ng gatas at diaper pero madalang.Nagulat na lang ako minsan ng makita ko picture nya sa facebook n may kahalikang babae s mismong bahay nmin. Kinopya ko mga pictures.Gusto ko sya idemanda.Ano gagawin ko….


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