Infidelity as “Psychological Incapacity” under Article 36 of the Family Code
(Philippine perspective, updated 1 June 2025)
1. Two very different legal paths: legal separation vs. nullity
Under the Family Code, “sexual infidelity” is expressly a ground for legal separation (Art. 55[3])—a remedy that keeps the bond intact but allows the spouses to live apart and divide property. It is not listed among the grounds for annulment or declaration of nullity. To dissolve the marriage itself, a spouse who was cheated on normally pleads psychological incapacity under Article 36, arguing that the adultery/concubinage is only a symptom of a deeper, grave personality disorder that rendered the other spouse incapable of the essential obligations of marriage from the very start. (Respicio & Co., Respicio & Co.)
2. The evolving doctrine of psychological incapacity
| Milestone | Key points | What it means for infidelity claims |
|---|---|---|
| Santos v. CA (1995) | First case to construe Art. 36; required “mental (not physical) incapacity” that is grave, antecedent and incurable. (Lawphil) | Cheating, by itself, was characterised as mere “refusal” rather than inability. |
| Republic v. CA & Molina (1997) | Laid down the Molina guidelines: root cause must be medically or clinically identified, proven by experts, and show gravity, juridical antecedence and incurability. (Lawphil) | Courts routinely dismissed petitions where adultery was the only proof, calling it “mere lack of commitment.” |
| Marcos v. Marcos (2000), Antonio v. Reyes (2004) | Relaxed Molina: expert testimony helpful but not indispensable; totality-of-evidence approach begins to grow. | |
| Tan-Andal v. Andal (En Banc, 11 May 2021) | Game-changer. Declared that psychological incapacity is a legal, not medical, concept; root cause need not be clinically named if the evidence shows a deeply embedded personality structure that is grave, antecedent and incurable. (Lawphil, The Library of Congress) | Opened the door for patterns of infidelity—supported by credible lay testimony—to be accepted as manifestations of the disorder even without a psychiatrist on the stand. |
| SC media release, April 2025 (G.R. 255706) | Re-affirmed Tan-Andal: “testimonies of family and friends can sufficiently establish psychological incapacity.” (Supreme Court of the Philippines) | A cheating spouse’s parents, siblings, or close friends can narrate long-standing philandering as evidence of an incurable personality disorder. |
3. When does infidelity rise to the level of psychological incapacity?
The Supreme Court has drawn a consistent line: habitual, unrepentant infidelity that reveals a disordered personality can amount to incapacity, but a single affair or post-marital lapse seldom suffices. Recent illustrations:
- Dela Cruz-Lanuza v. Lanuza (17 Apr 2024). Husband’s serial bigamy (two subsequent marriages), years-long abandonment, and refusal to support the family were held “indicative that he is not cognizant of the duties and responsibilities of a husband,” warranting nullity. (Lawphil)
- SC news release, Aug 2024 – Unjustified Absence case. Court nullified marriage where “infidelity, lack of support … and unjustified absence” showed a personality structure “incapable of marital obligations.” (Supreme Court of the Philippines)
- Halog v. Halog (25 Jan 2023). Petition denied: irresponsible ways and sporadic cheating were “mere marital difficulty,” not a grave disorder. (E-Library)
Daily Tribune commentary succinctly captures the rule: “sexual infidelity may be a manifestation of psychological incapacity, but is rarely enough on its own.” (Tribune)
4. Elements the court still looks for after Tan-Andal
- Gravity. Must be so serious that the spouse cannot understand or perform basic obligations (fidelity, cohabitation, mutual support).
- Juridical antecedence. Disorder existed at or before the wedding; serial flings that began only years later will not qualify unless rooted in earlier traits (e.g., narcissism).
- Incurability. Proof that counselling, therapy, or sincere effort have failed—or the spouse is unwilling to seek help.
- Link to marital duties. You must show how the cheating flows from the disorder (e.g., antisocial personality marked by deceit and lack of empathy).
Lay testimony, social-media messages, love letters, police blotters, and financial records are now regularly accepted to establish the pattern—expert reports simply strengthen the case. (Supreme Court of the Philippines)
5. Evidence checklist in an “infidelity-as-incapacity” petition
| Evidence | Purpose |
|---|---|
| Screenshots, hotel receipts, paternity DNA | Demonstrate serial philandering |
| Statements of parents, siblings, house-helpers | Prove antecedence (traits visible even while dating) |
| Psychiatric or psychological evaluation | Articulate the underlying disorder (narcissistic, antisocial, dependent, etc.) |
| Proof of repeated abandonment/non-support | Shows gravity and impact on marital obligations |
| Attempts at counselling & failure | Supports incurability |
6. Procedure in brief (2025 Rules)
- Verified petition in the Regional Trial Court (Family Court) where either spouse resides.
- Required parties: petitioner, respondent, Office of the Solicitor General and Prosecutor (to guard against collusion).
- Judicial steps: summons → mandatory counselling → pre-trial → presentation of evidence (often ex-parte when respondent defaults).
- Decision & automatic review: still elevated to the Court of Appeals, but Tan-Andal relaxed the former “strict scrutiny” standard.
- Timeline & cost: 2–5 years on average; ₱250k–₱500k typical when experts are engaged.
7. Criminal and civil overlays
- Adultery (Art. 333 RPC) and concubinage (Art. 334) remain criminal offences; they can proceed independently of the nullity case. (Respicio & Co.)
- A decree of nullity restores both spouses to the status of single persons; but children remain legitimate (Art. 36, ¶2 FC).
- Property: If the marriage is void ab initio, no conjugal partnership arose; parties undergo liquidation under Art. 147/148 depending on good faith.
8. Practical advocacy tips
- Document the pattern early. Courts give weight to contemporaneous evidence (old chat logs, affidavits dated before separation).
- Frame the disorder, not just the acts. Tie the philandering to traits such as impulsivity, pathological lying, or inability to empathise.
- Corroborate with lay witnesses. After the 2025 ruling, credible relatives can sometimes substitute for an absent psychiatrist.
- Anticipate the Molina factors even post-Tan-Andal: show gravity, antecedence, incurability—judges still recite them.
- Prepare for cross-charges. Accused spouse may file a retaliatory criminal case; ensure evidence was lawfully obtained.
9. Key take-aways
- Infidelity per se does not void a marriage.
- It can, however, be powerful evidence of a grave, antecedent, incurable psychological incapacity when it is serial, shameless, and rooted in a disordered personality.
- The Supreme Court’s recent trend—from Tan-Andal (2021) to the April 2025 pronouncement—favours a totality-of-evidence, common-sense approach over rigid psychiatric formalism.
For spouses facing relentless betrayal, this doctrinal shift means that well-documented patterns of cheating, backed by honest testimony, can now carry the day even without a “Ph.D.” on the witness stand.