February 16, 1970
Hon. Belker D. Paschall, Jr. Opinion No, M-577
County Attorney
Wood County Courthouse Re: Applicability of,Section
Quitman, Texas 3.66 of the Texas Family
Code to divorces granted
prior to the effective
date of such section; and
whether Section8 3.21 and
3.24 of the Code are con-
tradictory and render one
or both of those sections
Dear Mr. Paschall: void or Ineffective.
Your recent letter requesting the opinion of this office
concerning the referenced matter states, in part, a8 follows:
nI respectfully request your formal opinion
on the following questions:
"1 n Is Section 3.66 of the Family Code en-
acted by the last Legislature, regarding marriage
within six months after divorce, applicable where
divorces were granted prior to the effective date
of this section, which Is January 1, 19701
“2 / Are Sections 3.21 and 3.24 contradictory
to the extent of rendering each other void or render-
ing one or the other void or Ineffective?"
In regard to your first question, apposite sections of the
Texas Family Code, as enacted in Section 1 of House Bill No, 53
(Act6 61et Leg. R.S. 1969, ch, 888, p0 2706), are as follows:
“3 I66 eNeither party to a divorce may marry a
third party for a period of six months immediately
?ollowlng the date the divorce ie decreed, but the
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Hon. Belker D. Paschall, Jr., page 2 (M-577)
parties divorced
mey marry each other at any
time. The court
granting the divorce, for
good cause shown, may at the time of the di-
vorce decree or thereafter waive the prohl-
bition of$thie section as to either or both
parties 0’ ,(Emphasis added. )
“1.03(b) 0 The application form shall contain:
I‘D 0 e
“1.07(b) 0 The county clerk shall not
issue a license to the applicants if he knows
any facts which would make the marriage void
or voidable under this code.
“(c) If it la revealed that either appll-
cant has been divorced during the six-month
within the six-month period is pe;mitted under
Section 3.66 of this code.” (Emphasis added. )
Concealln a divorce granted within the six-month period
of Section 3*6 f , supra, is one of the facts referred to in
Section 1.07(b), supra, that would make such a marriage void-
able under the Code. Section 2.46 (which falls under Chapter
2 of subchapter C of the Code, dealing with the various types
of voidable marriages) of the Code provides a8 follows:
“(a) On the suit of a party to a marriage,
the marriage is voidable and subject to annul-
ment if:
“(1) The other party was divorced from
a third party within the six-month period
preceding the day of the marriage ceremony,
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Bon. Belker D. Paschall, Jr., page 3 (M-577)
and the prohibition a,gainst marrying again
within the six-month period was not waived
under Section 3.66 of this code. e *"
Section 10 of Rouse Bill No. 53, supra, provides:
“This Act does not affect rights and duties
that matured, penalties that were incurred, or
roceedings that were begun, before its effective
(Emphasis added.)
Section 11 of liouse Bill No. 53, supra, provides that “This
Act takes effect January 1, 1970”.
It is apparent from the language of Section !O of House
Bill No. 53, supra, that the Legislature intended that parties
to actions for divorce commenced prior to January 1, 1970, were
to be governed by the law In effect on December 31, 1969. The
etatutory predecessor of Section 3.66, supre, was Article 4640;
Vernon’s Civil Statetes, which, until repealed by the Code, read
a8 follows:
Under that statute, our courts have held a marriage in vlo-
lation thereof was not void, and neither party to the divorce pro-
ceeding had such a justiciable Interest In the remarriage of the
other as would enable him to maintain a suit to annul the remar-
rlage. Evans v. Hunt,
Oreae v. Qress, 209 s.Wt~~‘~~~12~T~~~~I~e~p~tvi~f;lj; :%i ~~f~~it)’
.R.2d 700; Ex Parte Castro, 115 Ter. 77, 273 S.W.
EgGf?
It Is our opinion that the six-month provisions of the Code
set forth hereinabove must be read in conjunction with the pro-
visions of Sections 10 and 11 of House Bill No. 53, supra. Ac-
cordingly, the remarriage rights of parties to divorces granted,
or to divorce proceedln a commenced, prior to January~l, 1970, will
be governed by Article & 640, eupra.
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Hon. Belker D. Paechall, Jr., page 4 (~-577)
The six-month prohibition of Section 3.66 of the Code is
applicable only to those divorces where proceedings were commenced
after January 1, 1970.
In view of the foregoing, your first question Is answered
in the negative.
Your second question related to the following sections of
the Code:
“3.21. No suit for divorce shall be main-
tained unless at the time the suit is filed the
etltloner has been a domiciliary of this stz
or the preceding 12 -man th period and a resident
of the county in which the suit is filed for the
preceding six-month period." (Emphasis added.)
"3.24. If one spouse has been a domieillar~
of this state for at least the la8t 12 months, 2
apouae domlclled In another jurisdiction may sue
?or divorce in the county where th domicil d
spouse is domiciled at the time th"e petitioi is
filed." (Emphasis added.)
We are of the opinion that the above sections are neither ln-
consistent nor contradictory, and that they can and therefore should.
be construed harmoniously. Section 3.21, supra, sets residence.qual-
lflcatlons that are applicable only to plaintiffs who are domlcil-
iaries of the State of Texas.
Section 3.24, supra, has no statutory predecessor in the former
law. We believe the Legislature intended to provide a remedy where-
by out-of-state domlclllarles whose spouse has been domiciled in the
State of Texas for at least 12 months would be able to obtain a di-
vorce in the courts of this State without having ~$0 maintain a
twelve months' Texas residence as a prerequisite to bringing a di-
vorce action. In view of the fact that Section 3.21, supra, clearly
sets the residence requirements for all petitioners who are domi-
ciliarles of Texas, Section 3.24, supra, can only be construed to
apply to petitioners domiciled without the State of Texas. We be-
lieve that is the proper meaning to be given to the clause "spouse
domlclled in another jurisdiction" in Section 3.24, supra.
In view of the fact that we consider Sections 3.21 and 3.24,
supra, to be valid, effectual, and not inconsistent, your second
question Is answered in the negative.
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. . . - .
Hon. Belker D. Paechall, Jr., page 5 (M-577)
SUMMARY
-------
(1) Section 3.66 of the Texas Family Code,
which prohibits remarriage of a party to a di-
vorce suit for a six-month period after the date
of the divorce decree, applies only to divorce
proceedings commenced after January 1, 1970.
(2) Section 3.21 of the Texas Family Code
sets residence requirements for all divorce
petitioners who are domlcillaries of the State
of Texas; Section 3.24 of the Code applies
only to divorce petitioners wh.o are domiciled
In a jurlsdictlon other than that of the State
of Texas.
Your.pvery truly,
Prepared by Austin C. Bray, Jr.
Assistant Attorney General
APPROVED :
OPINION COMMITTEE
Kerns Taylor, Chairman
Bill Allen, Co-Chairman
John Banks
Lonny Zwlener
Charles Parrett
Woodrow Curtis
MEADEF. GRIFFIN
Staff Legal Assistant
ALFRED WALKER
Executive Aaslstant
EGLA WHITE
Firat Assistant
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