Grounds for Annulment Based on Abandonment in Philippine Law

Understanding why mere desertion is not an autonomous ground, how it can still dissolve a marriage through other doctrinal doors, and what strategic options are available to an abandoned spouse.

1. The statutory landscape

Remedy	Governing provisions	Explicit “abandonment” ground?	Typical filing window
Declaration of absolute nullity (void marriage)	Arts. 35–38, 40 & 53–54, Family Code	No	None (action never prescribes)
Annulment (voidable marriage)	Arts. 45–46, Family Code	No	5 years from discovery or occurrence of the particular vice except Art. 45 (1) where the minor may file within 4 years after reaching 18
Legal separation	Arts. 55 & 63, Family Code	Yes – “Abandonment of petitioner by respondent without justifiable cause for more than one year” (Art. 55 [10])	5 years from the abandonment
Presumptive death & remarriage	Art. 41, Family Code	Indirect—requires four (or two in peril-of-life situations) continuous years of absence plus due diligence in searching	None stated, but must precede any second marriage
VAWC protection order	R.A. 9262	Abandonment = economic violence	Anytime during or after the violence

Bottom-line: Abandonment by itself is never a stand-alone ground for civil annulment; it is squarely a ground for legal separation, may supply evidence of psychological incapacity under Art. 36, or can ripen into a presumptive-death petition under Art. 41.

2. Why abandonment is not listed under Article 45

Article 45 enumerates the exclusive voidable-marriage defects (e.g., lack of parental consent, fraud, force & intimidation, impotence, STD). Because the list is exhaustive, judges cannot add abandonment through judicial legislation. The remedy in most desertion scenarios therefore migrates to:

Art. 36 psychological incapacity – if the abandoning spouse’s unwillingness gravely impairs the ability to perform essential marital obligations.
Art. 55 legal separation – if the abandonment is at least one year and the innocent spouse prefers to keep the marriage bond but live apart and secure property separation.

3. Abandonment as evidence of psychological incapacity

The Supreme Court has repeatedly treated persistent desertion—when rooted in a personality disorder or grave moral defect—as a manifestation of psychological incapacity:

Case	Key take-aways
Santos v. CA (G.R. 112019, Jan 4 1995)	First case to interpret Art. 36: incapacity must be “medically or clinically-identified,” antecedent, grave & incurable. Respondent’s 13-year abandonment was found insufficient because no clinical proof of a personality disorder was shown.
Republic v. Molina (G.R. 108763, Feb 13 1997)	Laid down the “Molina Guidelines.” Abandonment must spring from a serious psychological illness – not mere willfulness or marital dissatisfaction.
Marcos v. Marcos (G.R. 136490, Oct 19 2000)	Court relaxed evidentiary rigidity: expert testimony is helpful but not indispensable; the totality of facts—including repeated abandonment—can establish incurable incapacity.
Carating-Siayngco v. Siayngco (G.R. 175541, Aug 4 2010)	Declared void the marriage because of “utter indifference” and prolonged desertion; psychological report plus corroborative testimony sufficed.

Practice pointer: Provide a psychological evaluation establishing that the abandonment stems from a pathological inability—e.g., narcissistic or antisocial traits—otherwise the petition risks dismissal as mere marital irresponsibility.

4. Procedural roadmap if you choose annulment via Art. 36

Venue & jurisdiction – Regional Trial Court/Family Court where either spouse resides for the last 6 months (Art. 213, FC; A.M. No. 02-11-10-SC).
Verified petition must allege:
- Facts of the marriage (date/place, authority of solemnizing officer);
- Particulars of the psychological incapacity (antecedent, grave, incurable);
- How abandonment manifests that incapacity.
Attachments: PSA-issued marriage certificate, spouses’ and children’s birth certificates, psychological report, affidavits of witnesses, judicial affidavit of private investigator if any.
Service to Solicitor General & Prosecutor – indispensable parties who represent the State’s interest in preserving marriage.
Investigation report by the prosecutor to check collusion.
Pre-trial then trial (often ex parte vs. the absentee) culminating in a decision.
Entry of judgment & registration with the Local Civil Registry and PSA before any party may remarry.

5. What if annulment is denied or impracticable?

Option	Requisites	Effect
Legal separation	Abandonment > 1 year, filed within 5 years	Marriage bond subsists; spouses may live separately and have their property regime dissolved
Petition to declare spouse presumptively dead (Art. 41)	Continuous 4-year absence and well-founded belief of death; due diligence in search	Decree allows remarriage after recording; if spouse reappears, second marriage is voidable
Criminal/VAWC action	Abandonment results in economic violence or neglect	Imprisonment 6 mos–6 yrs; protection orders; may strengthen a later Art. 36 case
Support & custody suit	Art. 208, FC	Court may order interim support despite abandonment

6. Evidentiary tips for an abandonment-driven Art. 36 petition

Pattern of desertion: travel records, employer certifications, bank statements showing lack of remittances, barangay blotter entries.
Communication logs: unanswered messages, emails, social-media posts showing new life or relationship abroad.
Psychological testing: MMPI-2, 16-PF, or similar instruments administered by a licensed psychologist or psychiatrist plus narrative interpretation.
Collateral witnesses: parents-in-law, siblings, household helpers attesting to repeated leave-takings.
Failure to provide support: receipts, demand letters, children’s tuition bills.

7. Consequences of a successful decree

Capacities restored: Parties may remarry after registration with PSA.
Property relations: Conjugal/ACP dissolved; liquidation & partition supervised by the court (Art. 50-51).
Children’s status: Legitimate; joint parental authority remains unless a parent is unfit (Art. 49).
Succession: Former spouse ceases to be compulsory heir (Art. 100, FC).
Prescriptive periods: Criminal liability for economic abuse continues; support obligations survive.

8. Common misconceptions

Myth	Legal reality
“One-year desertion automatically voids the marriage.”	It only supplies a ground for legal separation, not nullity.
“If my spouse abandons me for four years I’m automatically single.”	You must still file an Art. 41 petition and obtain a judicial declaration of presumptive death before remarrying.
“Any abandonment equals psychological incapacity.”	The incapacity must be psychological, grave, incurable, and antecedent—proof-heavy.
“Church annulment is enough.”	A Church decree has no civil effect without a corresponding court decision.

9. Strategic checklist for the abandoned spouse

Clarify your objective – freedom to remarry vs. property split vs. child custody/security.
Gather documents early – PSA certificates, financial records, communications.
Consult a psychologist to assess Art. 36 viability.
Consider interim protection – VAWC barangay or court protection orders if support is cut.
Mind the 5-year prescriptive period for legal separation if annulment seems shaky.
Budget realistically – professional fees, publication costs, potential appeals.
Prepare for length – annulment averages 1.5–3 years in Metro Manila; faster in less congested dockets.
Remain diligent with notices – service by publication requires proof of exhaustive search for address.

10. Key take-aways

Abandonment alone never dissolves a marriage through annulment.
It can, however, be the factual backbone of either an Art. 36 petition, a legal-separation case, or a presumptive-death decree.
Success hinges on evidence quality—particularly psychological proof—and strict procedural compliance.
Always tailor the remedy to the desired outcome: freedom to remarry, economic disentanglement, protection from violence, or a combination thereof.

This article is for informational purposes only and does not constitute legal advice. Consult a qualified Philippine family-law practitioner for advice on your specific circumstances.