February 16, 1970 

Hon. Belker D. Paschall, Jr. 

County Attorney 

Wood County Courthouse 

Quitman, Texas 

Opinion No, M-577 

Re: Applicability of,Section 

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 contradictory 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 enacted 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 rendering 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 e Neither 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 divorce decree or thereafter waive the prohlbition 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 appllcant 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 

of Section 3*6 f 

a divorce granted within the six-month period 

, supra, is one of the facts referred to in 

Section 1.07(b), supra, that would make such a marriage voidable 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 annulment 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 vlolation thereof was not void, and neither party to the divorce proceeding had such a justiciable Interest In the remarriage of the 

other as would enable him to maintain a suit to annul the remarOreae v. Qress, 209 s.Wt~~‘~~~12~T~~~~I~e~p~tvi~f;lj; :%i ~~f~~it)’ 

rlage. Evans v. Hunt, 

EgGf? 

.R.2d 700; Ex Parte Castro, 115 Ter. 77, 273 S.W. 

It Is our opinion that the six-month provisions of the Code 

set forth hereinabove must be read in conjunction with the provisions of Sections 10 and 11 of House Bill No. 53, supra. Accordingly, 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 maintained 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. 

of this state 

If one spouse has been a domieillar~ 

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 lnconsistent nor contradictory, and that they can and therefore should. 

be construed harmoniously. Section 3.21, supra, sets residence.quallflcatlons that are applicable only to plaintiffs who are domlciliaries 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 whereby 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 divorce in the courts of this State without having ~$0 maintain a 

twelve months' Texas residence as a prerequisite to bringing a divorce action. In view of the fact that Section 3.21, supra, clearly 

sets the residence requirements for all petitioners who are domiciliarles of Texas, Section 3.24, supra, can only be construed to 

apply to petitioners domiciled without the State of Texas. We believe 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 divorce 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 

MEADE F. GRIFFIN 

Staff Legal Assistant 

ALFRED WALKER 

Executive Aaslstant 

EGLA WHITE 

Firat Assistant 

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