February 16, 1970

Hon. Belker D. Paschall, Jr. County Attorney WoodCounty Courthouse Quitman, Texas Opinion No, M-577 Re: Applicability of,Section 3.66 of the Texas Family Codeto divorces granted prior to the effective date of such section; and whether Section8 3.21 and 3.24 of the Codeare contradictory and render one or both of those sections void or Ineffective. Dear Mr. Paschall: Your recent letter requesting the opinion of this office concerning the referenced matter states, in part, a8 follows:

nI respectfully request your formal opinion onthe following questions: "1n 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 1of House Bill No, 53 (Act6 61etLeg. R.S. 1969,ch, 888, p02706), are as follows:

“3I66 e Neither party to adivorce maymarry a third party for aperiod of six months immediately ?ollowlng the date the divorce ie decreed, but the

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parties divorced meymarry each other at any time. The court granting the divorce, for good cause shown, mayat 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 Theapplication form shall contain: I‘ D0e

“1.07(b) 0 The county clerk shall not issue alicense to the applicants if heknows any facts which would make the marriage void or voidable underthis 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*6f adivorce granted within the six-month period

, supra, is one of the facts referred to in Section 1.07(b), supra, that would make such amarriage voidable under the Code. Section 2.46 (which falls under Chapter 2of subchapter Cof the Code, dealing with the various types of voidable marriages) ofthe Code provides a8 follows:

“(a) Onthe suit of aparty to amarriage, the marriage is voidable and subject to annulment if:

“(1) The other party was divorced from athird party within the six-month period preceding the day of the marriage ceremony,

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and the prohibition a,gainst marrying again within the six-month period wasnot waived under Section 3.66 of this code. e*" Section 10ofRouse 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 11of liouse Bill No. 53, supra, provides that “This Act takes effect January 1, 1970”

. It is apparent from the language of Section !OofHouse 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 onDecember 31, 1969. The etatutory predecessor of Section 3.66, supre, wasArticle 4640; Vernon’s Civil Statetes, which, until repealed by the Code, read a8follows:

Under that statute, our courts have held amarriage in vlolation thereof wasnot void, and neither party to the divorce proceeding had such ajusticiable Interest In the remarriage of the other as would enable himto 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; ExParte Castro, 115Ter. 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 10and 11of House Bill No. 53, supra. Accordingly, the remarriage rights of parties to divorces granted, or to divorce proceedln acommenced, prior to January~l, 1970, will be governed byArticle & 640, eupra.

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The six-month prohibition of Section 3.66 of the Codeis 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. Nosuit for divorce shall bemaintained unless at the time the suit is filed the etltloner has been adomiciliary of this stz or the preceding 12-manth period and aresident 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 adomieillar~

for at least the la8t 12months, 2 apouae domlclled In another jurisdiction maysue ?or divorce in the county where th domicil d spouse is domiciled at the time th"epetitioi is filed." (Emphasis added.) Weare 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 whoare domlciliaries of the State of Texas. Section 3.24, supra, has no statutory predecessor in the former law. Webelieve the Legislature intended to provide aremedy whereby out-of-state domlclllarles whose spouse has been domiciled in the State of Texas for at least 12months would be able to obtain adivorce in the courts of this State without having ~$0maintain a twelve months' Texas residence as a prerequisite to bringing adivorce action. In view of the fact that Section 3.21, supra, clearly sets the residence requirements for all petitioners whoare domiciliarles ofTexas, Section 3.24, supra, can only be construed to apply to petitioners domiciled without the State ofTexas. Webelieve 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 weconsider 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 aparty to adivorce 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 whoare domlcillaries of the State of Texas; Section 3.24 of the Codeapplies only to divorce petitioners wh.oare domiciled In ajurlsdictlon other than that of the State of Texas.
Your.pvery truly,

Prepared byAustin C.Bray, Jr. Assistant Attorney General APPROVED: OPINIONCOMMITTEE Kerns Taylor, Chairman Bill Allen, Co-Chairman John Banks Lonny Zwlener Charles Parrett WoodrowCurtis MEADE

F. GRIFFIN Staff Legal Assistant ALFREDWALKER Executive Aaslstant EGLAWHITE Firat Assistant

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