Untitled Texas Attorney General Opinion ( 1971 )

TIE ATTBRNES GENERAL
OPI'EXAS
AUSTIN~ TEXAS 18711
January4, 1971
Honorable Ned Granger Opinion No. M- 768
County Attorney
Travis County Courthouse Re: Applicability of the six-
Austin, Texas month waiting provision of
Section 3.66 of the Texas
Family Code to a person
seeking to obtain a Texas
marriage license within
six months after his
Dear Mr. Granger 8 divorce in another state.
your recent letter requesting the opinion of this
office concerning the referenced matter states, in part, as
follows:
"If a husband and wife obtain a divorce in
another state which does not have the six-month
waiting period similar to the one in Section 3.66
of the Texas Family Code, may a county clerk's
office in a Texas county properly issue a marriage
license to one of the parties who moves into Texas
prior to the expiration of the six-month waiting
period required by the Texas statute?"
In our answer to your question, we assume that the
out-of-state divorced party seeking a Texas marriage license
has received neither the waiver of the six-month remarriage
prohibition of Section 3.66 of the Texas Family Code that is
provided in that Section, nor a waiver by the county judge,
pursuant to Section 1.05 of the Code, of the necessity of fur-
nishing information to a county clerk concerning prior divorces
(cf. Attorney General's Opinion No. M-604 (1970)).
Section 3.66 of the Texas Family Code provides as
follows:
"Neither party to a divorce may marry a
third party for a period of six months immediately
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Honorable Ned Granger, page 2 (M-768)
following the date the divorce is decreed, but ,'
the parties divorced may marry each other ateany
time. The court urantinq the divorce, for good
cause shown, may at the time of the divorce decree
or thereafter waive the prohibitionof this section
as to either or both parties." (Emphasis added.)
While the issue posed by your question is one of first
impression in this State, the applicable law has been stated as
follows:
"Sometimes a remarriage in one state follow-
ing a divorce obtained in another state is attacked
on the ground that the law of the marrying state,
or of some third state! contained a prohibition
against remarriage that should be applied.,regard-
less of whether the divorcing state had such a
prohibition. Courts considerinq'this .auestion
have qenerallv concluded that statutorv prohibitions.,
aqainst remarriaqe after divorce are limited to
divorces qranted within the state havinq such pro-
hibition, and will not be aoolied to persons
divorced in other states, althouqh there is‘some
authoritv to the contrarv." 52 Am.Jur.2d 942,
Marriage, Sec. 91. (Emphasis added.)
See, also, 27A Corpus Juris Secundum 770-71, Divorce, Sec. 182,
The majority view, that statutory prohibitions against
remarriage after divorce are limited to divorces granted by the
state having such prohibition, is supported by the following
authorities: In Re Kinkead's Estate, 57 N.W.2d 628 (Minn, Sup.
1953); In Re Donlav's Estate, 111 N.Y.Supp.Zd 253, (N.Y. App,
Div. 1952); Lembcke v. United States, 181 F.2d 703 (2nd Cir.
1950); Pickard v, Pickard, 45 N.W.Zd 269 (Iowa Sup. 1950):
Fitzqerald v, Fitzqerald, 246 N.W. 680 (Wise. Sup, 1933): Smith
v. Goldsmith, 134 So. 651 (Ala. Sup. 1931); Reqer v. Reqer, 293
S.W. 414 (MO, Sup. 1927); Sparks v. Sparks, 284 S.W. 1111 (Ky,
Sup. 1926); Farrell v. Farrell, 181 N.W. 12 (Iowa Sup. 1921):
State v. Bentlev, 53 A. 1068 (Vt. Sup. '1903); and Phillins v.
Kadrid, 22 A. 114 (Me. Sup. 1891).
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.
Honorable Ned Granger, page 3 (M-768)
The minority view, which sanctions the application of
a marrying state's prohibition on remarriage to persons divorced
in other states, is set forth in the following authorities: In
Re Naturalization of Mavall, 154 F. Supp. 556 (E.D.Pa. 1957);
Mosholder v. Industrial Commission, 160 N.E. 835 (Ill. Sup. 1928);
Stevens v. Stevens, 136 N.E. 785 (Ill. Sup. 1922); Smith v. Wood-
worth, 44 Barb. 198 (N.Y.); and Kalmbacher v. Kalmbacher, 63 Pa.
D & C 195 (Pa.).
While your question does not present a genuine choice-
of-law situation, it is apposite to note that the applicable
conflict of laws rule is that prohibitions against remarriage
after divorce are generally construed to have no extraterritor-
ial effect. See, =.q., Louahran v. Loushran, 292 U.S. 216, a.
denied, 292 U.S. 615 (1934): Vickers v. Faubion, 224 S.W. 803
(Tex.Civ,App. 1920, no writ).
In our view, the substance of your question is: Does
the wording of Section 3.66 of the Texas Family Code, quoted
supra, apply to a person seeking a Texas marriage license who
has received an out-of-state divorce within the six months pre-
ceding the date of his license application?
The broad language of the Section does not exempt from
its prohibition a person who obtained an out-of-state divorce,
nor does the language of the Section that is underscored exempt
the recipient of an out-of-state divorce from obtaining the
waiver, However t the underscored portion of the statute could
logically apply only to persons divorced in the courts of this
State, as that underscored language can have no effect on the
divorce laws of other states, as shown by the authorities cited
next above.
After an examination of the authorities cited herein-
above in support of the majority and minority views concerning
the issue posed by your question, we are of the opinion that the
reasoning of the majority of the courts that have considered your
question is the sounder and more cogent. We are further of the
opinion that it was the intent of the Legislature that the pro-
hibition contained in Section 3.66 was to be applicable only to
pers'onswho obtain divorces in this State.
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. .
Honorable Ned Granger, page 4 (M-768)
Pursuant to Section 1.03(b)(4) of the Family Code, the
application form for a marriage license contains a space to be
filled in by the applicant in which he indicates if he has been
divorced within the preceding six-month period. Section 1.07(c)
of the Code provides:
"If it is revealed that either applicant has
been divorced during the six-month period preceding
the date of the application, the county clerk shall
not issue the license unless it is shown that the
subsequent marriage within the six-month period is
permitted under Section 3.66 of this code."
;,
This provision refers only to those persons divorced
in Texas, and thus you are advised that, in view of the require-
ments of Sections 1.03(b)(4) and 1.07(c), supra, the following
procedure should be followed by a county clerk when a license is
issued to a person who has obtained an out-of-state divorce, The
person must complete the marriage license application form in full,
answering in the affirmative in the space relating to a prior di-
vorce D The clerk shall then issue a license to the applicant,
in consonance with the holding of this Opinion and our construal
of Section l.O7(c)'s lack of application to the situation pre-
sented by your question.
Accordingly, your question is answered in the affirmative,
SUMMARY
The six months prohibition on remarriage
after a divorce that is contained in Section 3.66
of the Texas Family Code applies only to persons
who have secured a divorce from a Texas court.
The prohibition does not apply to a person seeking
a marriage license in Texas who, within the six-
month period preceding the date of his marriage
license application, has been divorced in another
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. . I
Honorable Ned Granger, page 5 (M-768)
state. Such person may, therefore, be issued a
marriage license by a Texas county clerk at any
time after his divorce, in any state other than
Texas, has become final.
/
Very/i ruly yours,
/ .I
-
General of Texas
Prepared by Austin C. Bray, Jr.
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Kerns Taylor, Chairman
W. E. Allen, Co-Chairman
Arthur Sandlin
Sally Phillips
James Mabry
Ray McGregor
MEADE F. GRIFFIN
Staff Legal Assistant
ALFREDWALKER
Executive Assistant
NOLAWHITE
First Assistant
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