April 15, 1975
The Honorable Hank Anderson Opinion No. H- 581
Wichita County Attorney
Wichita County Courthouse Re: The authority of a county
Wichita Falls, Texas 76301 clerk to issue a marriage
license to a recently
divorced party before the
expiration of the 30-day
waiting period set out in
section 3.66 of the Texas
Dear Mr. Anderson: Family Code?
You have requested our opinion with regard to thenissuance of marriage
licenses, observing that you are:
. . . concerned with the County Clerk’s authority to
issue a marriage license to an individual who has been
divorced within the 30 days prior to applying for a
new license to marry a third party.
An example of a situation giving rise to your inquiry is set out in your
request as follows:
. . . an individual plans a marriage on the 31st
day after his divorce; that day being a Sunday or
holiday when the County Clerk’s Office is closed.
You then ask:
Does the County Clerk have the authority to issue
the marriage license during the 30-day waiting
period when the marriage is planned after the
waiting. period has expired?
p. 2587
.
The Honorable Hank Anderson, page 2 (H-581)
This required “30-day waiting period” is found in section 3.66, Texas
Family Code, which section provides as follows:
Neither party to a divorce may marry a third party
for a period of thirty days immediately following
the date the divorce is decreed, but the parties divorced
may marry each other at any time. (Emphasis
supplied).
Notice is made that section 3.66 prohibits only remarriage by a divorced
person (except to his former spouse) and does not speak to the matter of
~issuing a license for a contemplated marriage. Other sections of the Family
Code must be consulted to determine the propriety of issuing a license within
a 30-day period following a divorce.
Section 1.03(b) requims the county clerk to furnish an application form
to be executed by an aeplicant for a marriage license, the form toinclude
(among other things):
(4) spaces for indicating whether each applicant
has ,been divorced within the last 30 days,
Tire County Clerk is mandated by section 1.06 to obtain the information
called for by the application form including information as to whether either
party contemplating marriage has been divorced within 30 days.
However, section 1.07 provides the only authority for a county cierk to
refuse to issue a marriage license and the fact of divorce within 30 days
of the date of the application is not a ground for refusal. Accordingly, a
county clerk has the authority to issue a marriage license in the situation
you pose. Of course, the parties are not entitled to marry prior to the
expiration of the 30-day period.
p. 2588
The Honorable Hank Anderson, page 3 (H-581)
SUMMARY
Although the parties are not entitled to marry
prior to the expiration of the 30-day period,a county
clerk has the authority to issue a marriage license
where it appears from the application that one or
both applicants have been divorced within 30 days
of the date of the application.
Very truly yours,
Attorney General of Texas
APPROVED:
DAVID M. KENDALL, First Assistant
Opinion Committee -
p. 2589