Short answer. On its own, no. Article 36 asks whether your spouse was psychologically incapacitated to comply with the essential marital obligations at the time of the celebration. Infidelity may be evidence of such an incapacity, but the affair by itself is a breach of the obligation, not proof of an inability to assume it.
What the law says
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.
Family Code, Article 36 — Psychological Incapacity. Read the full provision →
Incapacity, not misconduct
The distinction the article draws is between a spouse who could comply and did not, and a spouse who was never able to. Unfaithfulness, however repeated and however painful, is on its face a failure to keep an obligation the person was capable of keeping. That is why petitions built on the affair alone do not succeed: they prove the breach and stop there. What has to be shown is something about the person that made faithful married life beyond them from the outset, of which the infidelity is a symptom rather than the case.
“At the time of the celebration” is the anchor
The incapacity must have existed on the wedding day, though the article expressly allows that it may become manifest only after its solemnization. So conduct during the marriage is admissible to show what was already there; it is not admissible to show that your spouse changed. Courts look for a condition grave enough to disable the person from the essential obligations, traceable to a cause existing before the marriage, and enduring rather than a phase. A pattern reaching back into how your spouse lived before you married is usually where the evidence begins.
The word is nullity, not annulment
A marriage under this article is void, and the case is a petition for declaration of absolute nullity rather than annulment. The difference is not merely vocabulary — the two rest on different grounds and follow different rules, including on the periods for filing. It also matters to what you are told casually, because a great deal of advice about annulment does not apply to this ground at all. Get the label right early; it determines which questions a lawyer is actually answering for you.
Infidelity has its own, simpler home
If what you want is to stop living with an unfaithful spouse and to separate your property, sexual infidelity is a ground for legal separation in its own right, and it has to be proved to a far less demanding standard than psychological incapacity. It leaves the marriage in existence, which is its limitation. Being clear about what you actually need — freedom to remarry, or protection of your household and money — is what decides which of the two cases is worth bringing.
Cases citing this provision
These Supreme Court decisions cite the provision above. We list them so you can read them yourself; the summaries of what each decided are not ours to give.
- Tan-Andal v. Andal, G.R. No. 196359, May 11, 2021 (Leonen, J.) — psychological incapacity is a legal, not medical, concept; expert opinion not required; incurability in the legal sense. Read our commentary →
- Republic v. Court of Appeals and Molina, G.R. No. 108763, February 13, 1997 — the Molina guidelines; partly amended by Tan-Andal.
- Santos v. Court of Appeals, G.R. No. 112019, January 4, 1995 — gravity, juridical antecedence, incurability.