De Facto Separation, Abandonment—and Declaration of Absolute Nullity of Marriage

Petitioners seeking marriage dissolution often cite prolonged periods of de facto separation with their spouses—often spanning five to 10 years—as definitive proof of an irretrievably broken union. From their perspective, such extended estrangement should obligate the law to grant them a decree of annulment or a declaration of absolute nullity.    

In the Philippines—where absolute divorce remains unavailable to the non-Muslim majority—marriage is fiercely guarded as an inviolable social institution whose nature, consequences, and incidents are strictly governed by law (Article 1, Family Code). Unlike standard civil contracts, the dissolution of the marital bond is entirely removed from the autonomy of the spouses. Thus, the law alone dictates the terms of its exit, providing an unyielding framework of narrow, pre-determined grounds.

As the only legal remedies to dissolve a marriage, both annulment and a declaration of absolute nullity require rigorous judicial proceedings to prove statutory grounds. Under Articles 35 to 38, the total absence of an essential or formal requisite renders a marriage void ab initio, meaning it is legally non-existent from its inception. On the other hand, a defect in an essential requisite may also render a marriage voidable under Article 45, meaning the union remains valid until legally dissolved via a judicial decree of annulment.

In either of these remedies, a de facto separation (“separation in fact”)—whether caused by abandonment, infidelity, or irreconcilable differences and no matter how long it has been—is not an explicit ground. However, particularly the one caused by abandonment, it has been heavily litigated as evidential proof of psychological incapacity under Article 36, which provides that:

“Article 36. A marriage contracted by any party who, at the time of the celebration, was psychologically incapacitated to comply with the essential marital obligations of marriage, shall likewise be void even if such incapacity becomes manifest only after its solemnization. (As amended by Executive Order 227).”

Over 30 years ago, the Supreme Court (SC), in Santos v. Court of Appeals (CA) and Bedia-Santos, G.R. No. 112019 (January 04, 1995), once held that psychological incapacity cannot be established by mere marital failure or abandonment, citing the “most serious cases of personality disorders.”

In the facts of the case, the couple’s marriage quickly deteriorated due to domestic friction and parental interference shortly after their wedding and the birth of their son. This friction culminated in the wife migrating to the United States, where she cut off all communication and failed to return home for over five years despite the husband’s desperate efforts to locate her.

Far from this ruling, however, in recent landmark jurisprudence, e.g., in Tan-Andal vs. Andal, G.R. No. 196359 (May 11, 2021), the Supreme Court (SC) ruled that psychological incapacity is a legal and not strictly a medical concept. It is a durable or enduring personality structure that renders one incapable of complying with the essential marital obligations.

To prove psychological incapacity, the law explicitly demands proof of a fundamental deficit in an indispensable aspect—i.e., compliance with “essential marital obligations,” which in turn pertain to foundational duties of spouses codified under Article 68 and mandates that:

“Article 68. The husband and wife are obliged to live together, observe mutual love, respect and fidelity, and render mutual help and support.”

Clearly, “living together” or continuous cohabitation as husband and wife constitutes essential marital obligations under the law. Where an incurable and enduring personality structure predating the marriage is proven to structurally hinder a spouse’s capacity to fulfill this obligation, such a situation amounts to psychological incapacity that may subsequently serve as a valid ground to declare the marriage void ab initio.

In a definitive integration of long-term abandonment into the Tan-Andal Doctrine, the Court ruled, in Dela Cruz-Lanuza v. Lanuza and Republic, G.R. No. 242362 (April 17, 2024), that a husband’s infidelity, lack of support, and unjustified absence may indicate an incapacity to fulfill marital obligations, emphasizing behavioral dysfunctionality.

According to the factual antecedents, the wife petitioned for absolute nullity, claiming she and her husband never secured a valid marriage license for their wedding and that he was psychologically incapacitated. She testified that he abandoned their family, withheld financial support, and entered into two subsequent bigamous marriages, presenting a Philippine Statistics Authority (PSA) certification and an expert psychologist’s diagnosis of narcissistic personality disorder to support her claims.

However, the Regional Trial Court (RTC) dismissed the petition, ruling that the subsequent marriages were unproven due to a lack of actual marriage certificates. The trial court further held that even if the unions occurred, they merely established infidelity rather than psychological incapacity. Ultimately, the court rejected the expert’s findings, concluding that the psychological report lacked the specific behavioral particulars necessary to prove a deep-seated personality defect.

On review, the Supreme Court (SC) reversed the dismissal, ruling that the expert successfully established the gravity, incurability, and pre-marital roots of the husband’s narcissistic personality disorder. The Court found that his chronic infidelity, total abandonment, and refusal to provide support were not mere behavioral flaws, but incurable manifestations of an incapacity deeply ingrained during his formative years.

Disclaimer: This article is for informational purposes only and does not constitute legal advice. No attorney-client relationship is established. For advice tailored to your specific circumstances, consult a qualified professional.

Duran & Duran-Schulze Law is a family law firm that provides end-to-end assistance in nullity of marriage proceedings, guiding clients through petition preparation, court filing, trial representation, and final judgment.

For legal consultations and inquiries, call us at (02) 8928-9535 (landline) or +639171940482 (mobile), or email info@duranschulze.com.