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Affinity and consanguinity as a basis for disqualification under

Canon 3 section 5(f)

Problem Areas in Legal Ethics
Arellano University School of Law Arellano Law Foundation
RRC Rule 137




Sec. 1. Disqualification of judges. - No judge or judicial officer shall sit in any

case in which he, or his wife or child, is pecuniarily interested as heir, legatee,
creditor or otherwise, or in which he is related to either party within the
sixth degree of consanguinity or affinity, or to counsel within the
fourth degree, computed according to the rules of the civil law, or in which
he has been executor, administrator, guardian, trustee or counsel, or in which
he has presided in any inferior court when his ruling or decision is the subject
of review, without the written consent of all parties in interest, signed by
them and entered upon the record.
A judge may, in the exercise of his sound discretion, disqualify himself
from sitting in a case, for just or valid reasons other than those mentioned
Sec. 2. Objection that judge disqualified, how made and effect. - If it be
claimed that an official is disqualified from sitting as above provided, the
party objecting to his competency may, in writing, file with the official his
objection, stating the grounds therefor, and the official shall thereupon
proceed with the trial, or withdraw therefrom, in accordance with his
determination of the question of his disqualification. His decision shall be
forthwith made in writing and filed with the other papers in the case, but no
appeal or stay shall be allowed from, or by reason of, his decision in
favor of his own competency, until after final judgment in the case.
RULE 3.12 - A judge should take no part in a proceeding where the judge's
impartiality might reasonably be questioned. These cases include among others,
proceedings where:

(a) the judge has personal knowledge of disputed evidentiary facts concerning the
(b) the judge served as executor, administrator, guardian, trustee or lawyer in the
case or matter in controversy, or a former associate of the judge served as counsel
during their association, or the judge or lawyer was a material witness therein;
(c) the judge's ruling in a lower court is the subject of review;
(d) the judge is related by consanguinity or affinity to a party litigant within
the sixth degree or to counsel within the fourth degree;
(e) the judge knows the judge's spouse or child has a financial interest, as heir,
legatee, creditor, fiduciary, or otherwise, in the subject matter in controversy or in a
party to the proceeding, or any other interest that could be substantially affected by
the outcome of the proceeding.
In every instance, the judge shall indicate the legal reason for inhibition.
Definition of affinity
Affinity is defined as "the relation which one spouse because of marriage has to
blood relatives of the other. The connection existing, in consequence of marriage
between each of the married persons and the kindred of the other. The doctrine of
affinity grows out of the canonical maxim that marriage makes husband and wife
one. The husband has the same relation by affinity to his wife's blood relatives
as she has by consanguinity and vice versa. PP v. Raul Berana, G.R. No.
123544 July 29, 1999
Relationship by affinity refers to a relation by virtue of a legal bond such as
marriage. Relatives by affinity therefore are those commonly referred to as "inlaws," or stepfather, stepmother, stepchild and the like. - PP v. Atop, G.R. Nos.
124303-05 February 10, 1998
Affinity denotes "the relation that one spouse has to the blood relatives of the other
spouse." It is a relationship by marriage or a familial relation resulting from
marriage. It is a fictive kinship, a fiction created by law in connection with the
institution of marriage and family relations. - Tiggangay v. Judge Wacas A.M.
OCA IPI No. 09-3243-RTJ [2013]
NCC SUBSECTION 1. - Relationship
Art. 963. Proximity of relationship is determined by the number of
generations. Each generation forms a degree.
Art. 964. A series of degrees forms a line, which may be either direct or

A direct line is that constituted by the series of degrees among ascendants

and descendants.
A collateral line is that constituted by the series of degrees among persons
who are not ascendants and descendants, but who come from a common ancestor.
Art. 965. The direct line is either descending or ascending.
The former unites the head of the family with those who descend from him.
The latter binds a person with those from whom he descends.
Art. 966. In the line, as many degrees are counted as there are generations
or persons, excluding the progenitor.

In the direct line, ascent is made to the common ancestor. Thus, the child is
one degree removed from the parent, two from the grandfather, and three
from the great-grandparent.
In the collateral line, ascent is made to the common ancestor and then
descent is made to the person with whom the computation is to be made.
Thus, a person is two degrees removed from his brother, three from his uncle,
who is the brother of his father, four from his first cousin, and so forth.
Art. 967. Full blood relationship is that existing between persons who
have the same father and the same mother.
Half blood relationship is that existing between persons who have the
same father, but not the same mother, or the same mother, but not the same
2 legal theories
1. The terminated affinity view holds that relationship by affinity terminates
with the dissolution of the marriage either by death or divorce which gave
rise to the relationship of affinity between the parties.
Under this view, the relationship by affinity is simply coextensive and
coexistent with the marriage that produced it. Its duration is indispensably
and necessarily determined by the marriage that created it.
Thus, it exists only for so long as the marriage subsists, such that the death
of a spouse ipso facto ends the relationship by affinity of the surviving spouse
to the deceased spouses blood relatives.

The first view admits of an exception. The relationship by affinity

continues even after the death of one spouse when there is a surviving issue.
The rationale is that the relationship is preserved because of the living issue
of the marriage in whose veins the blood of both parties is commingled.

2.The continuing affinity view maintains that relationship by affinity between the
surviving spouse and the kindred of the deceased spouse continues even after
the death of the deceased spouse, regardless of whether the marriage
produced children or not.
Under this view, the relationship by affinity endures even after the dissolution
of the marriage that produced it as a result of the death of one of the parties
to the said marriage.
This view considers that, where statutes have indicated an intent to benefit steprelatives or in-laws, the tie of affinity between these people and their relatives-bymarriage is not to be regarded as terminated upon the death of one of the
married parties. Intestate Estate of Gonzales vda. De Carungcong v. PP,
G.R. No. 181409 February 11, 2010
Blood relatives
Relatives by consanguinity or blood relatives encompassed the following:
(1) an ascendant;
(2) a descendant;
(3) a legitimate, natural or adopted brother or sister
124303-05 February 10, 1998

- PP v. Atop, G.R. Nos.

No affinity
Indeed, "there is no affinity between the blood relatives of one spouse and the blood
relatives of the other. A husband is related by affinity to his wifes brother, but not
to the wife of his wifes brother. There is no affinity between the husbands
brother and the wifes sister. - Tiggangay v. Judge Wacas A.M. OCA IPI No.
09-3243-RTJ [2013]
Is the relationship by affinity created between the husband and the blood relatives
of his wife (as well as between the wife and the blood relatives of her husband)
dissolved by the death of one spouse, thus ending the marriage which created
such relationship by affinity?
If marriage gives rise to ones relationship by affinity to the blood relatives of ones
spouse, does the extinguishment of marriage by the death of the spouse dissolve
the relationship by affinity?

Common law relationship not a relationship by affinity

The law cannot be stretched to include persons attached by common-law relations.
Here, there is no blood relationship or legal bond that links the appellant to his
victim. Thus, the modifying circumstance of relationship cannot be considered
against him. PP v. Atop, G.R. Nos. 124303-05 February 10, 1998
Case 1
Judge is respondents second cousin by affinity, the formers [judge] aunt is
married to an uncle of respondent. The relationship notwithstanding, Judge did
not inhibit himself from hearing said electoral case.
Judge, as alleged, are related within the sixth degree by affinity in that the aunt of
the judge is married to the uncle of respondent.
WON the judge is related by affinity to respondent.
Judge not disqualified
In the instant case, considering that Judge Wacas is related to his aunt by
consanguinity in the third degree, it follows by virtue of the marriage of his
aunt to the uncle of Dagadag that Judge Wacas is the nephew-in-law of the uncle
of Dagadag, i.e., a relationship by affinity in the third degree.
But Judge Wacas is not related by affinity to the blood relatives of the uncle
of Dagadag as they are not his in-laws and, thus, are not related in any way to
In like manner, Dagadag is the nephew-in-law of the aunt of Judge Wacas but is not
related by affinity to the blood relatives of Judge Wacas aunt, like Judge Wacas.
In short, there is no relationship by affinity between Judge Wacas and Dagadag as
they are not in-laws of each other. Thus, Judge Wacas is not disqualified under
Sec. 1 of Rule 137 to hear Election Case. - Tiggangay v. Judge Wacas A.M. OCA
IPI No. 09-3243-RTJ [2013]
Beingmagbalaes is not a ground for automatic disqualification
Complainant contends that respondent judge is guilty of impropriety by refusing to
inhibit himself from the case despite the fact that one of the accused, Lope Panti,
Sr., is the father-in-law of respondent judges daughter.
To be sure, respondent judge and accused Lope Panti, Sr. are not, strictly speaking,
relatives within the meaning of Rule 137, 1 of the Rules of Court.
Nevertheless, the close personal relations between them as parents of their
respective children, being in our culture known as magbalaes, should have

cautioned respondent judge to inhibit himself from the case, lest his
impartiality be placed in doubt. Agunday v. Judge Tresvalles, A.M. No. MTJ99-1236. November 25, 1999
Complainant is the judges wife
Respondent issued a warrant for the arrest of complainant, knowing that the
private complainant therein was his wife, Atty. Ester Flor. Tenenan v. Judge
Flor, Jr., A.M. No. RTJ-06-1995 September 25, 2007
Judges nephew is the husband of the daughter of the counsel for the accused
It is alleged that respondent should have inhibited himself from Criminal Case No.
207096, entitled People v. Crisostomo Yalung, Roy Manuel M. Villasor, SG Fernando
Tagle, and SG Ronan Guerrero because respondents nephew, Atty. Cris
Pascua Zafra, is married to the daughter of Atty. P. M. Castillo,
complainants defense counsel in that case. Complainants claim that although
respondents relationship is to the husband of the daughter of their counsel, they
did not want respondent to try their case because they wanted to [avoid] any
stigma and/or cloud of doubt on any order/decision which respondent may render
on the case.
In this case, respondent judge failed to take into account the loss of trust on the
part of the complainant as to his impartiality.
When a judge exhibits actions that give rise, fairly or unfairly, to
perceptions of bias, such faith and confidence are eroded, and he has no choice
but to inhibit himself voluntarily. A judge may not be legally prohibited from sitting
in a litigation, but when circumstances appear that will induce doubt on his
honest actuation and probity in favor of either party, or incite such state
of mind, he should conduct a careful self-examination. He should exercise
his discretion in a way that the peoples faith in the courts of justice is not impaired.
The better course for the judge is to disqualify himself. - Latorre v. Judge
Ansaldo, A.M. No. RTJ-00-1563 [2001]
In any event, the grounds relied upon by complainants to support their motion, i.e.,
that respondents nephew is the husband of the daughter of the counsel
for the accused; that they lacked confidence in respondents impartiality xxx
have no merit.
The first is not a ground for mandatory disqualification of judges under Rule
137, par. 1 since respondent is not even related to counsel for the accused. Yalung v. Judge Pascua, A.M. No. MTJ-01-1342 [2001]
Father-in-law of the judge present in the proceeding

The meat of this motion for inhibition is that the father-in-law of the
Presiding Judge, herein respondent, was conspicuously present in the
proceedings during which time he gave consultation to the complainant
who was reportedly his political leader and protge.
In this case, however, respondent did not simply fail to recuse himself from cases in
which his relatives were either involved or interested, the record shows he did so
to favor or protect the parties. Siawan v. Judge Inopiquez, Jr., A.M. No. MTJ95-1056. May 21, 2001
Discussing the pending case with a brother
By allowing his brother to discuss with him the merits of one partys position,
Justice Sabio gave his brother the opportunity to influence him. Any reasonable
person would tend to doubt Justice Sabios independence and objectivity after such
a conversation with a close family member who also happens to hold a
high government position. As a magistrate, Justice Sabio has the duty to
prevent any circumstance that would cast doubt on his ability to decide a case
without interference or pressure from litigants, counsels or their surrogates. (Re:
Letter of Presiding Justice Vasquez, Jr., A.M. No. 08-8-11-CA, October 15, 2008)