August II, I952 

Hon. G. Frank W~~~~PJES 

Plreme~~s Pension Comleeloner 

702 Trlbune~~BulIdlng 

Austin, Texas Oplnlon Bo. v-1506 

Dear Mr. Wllllam~: 

Re: Effeot of a m%mlage 

and subeequeut %mnalluent thereof upon the 

pension ellglblllty of 

a flremmcs vldov, 

Your request for an opinion reads in part a8 

follovs: 

"The Pension Law speolfles that upon the 

death of a Fireman vho 1s drsvlng a pension, 

his widov shall reoelve her pro rata part of 

hle pension, . . . '60 long 8s she remain a 

wf%ow. . . .' 

"Ue have a vldow vho drev her pro rata 

part of her huaband'B pension for approxlmately five months; she remarried and aboutseven 

months later secured a Decree of Annulment In 

the District Court of Tarrant County, Texaa. 

"The above mentioned widow has now made 

appllcatlon to her local Penalon Board to be 

reinstated aa the vldow of the deceased Flrem%n and that her penelon payments be reswved 

inasmuch a8 she claims the Courts set aside 

the purported nuwriage a8 'held for naught.'" 

The decree of annulment mentioned in your letter 

provides : 

"It Is therefore Ordered, Adjudged and 

Decreed by the court that the purported m%rrlage entered into betveen the plaintiff and 

defendant on or about the 5th day of July, 

1951, be, and the same hereby is, diaaolved, 

annulled, set aside and held for naught beaauae 

of the natural and Incurable impotence of defendant at the time of the purported uriiage 
, 

Hon. 0. Frank Williams, page 2 (V-1506) 

and eny and all other grounds alleged in 

plaintiffls petition, and that said marrisge is in nowlse binding upon the 

plaintiff." 

Your question is whether after the snnulment 

decree above mentioned the widow Is entitled to reinstatement of the psnslon. 

Article 4628, V.C.S., provt%es tbet: 

"The ~lmrrrfsge relation may be dissolved 

vhere the causes slleged therefor shall be 

pstuml or lnmmsble ,intpotency of body at the 

time of entering Into the marriage contract, 

or auy other lmpe6lment that renders such 

contract void, and the court m%y decree the 

marriage to be null and void. 

Section I.2 of Article 6243e, V.C.S., provides: 

"If any member of any dep%rtas?nt, as herein 

defined, vho h%a been retired on %llow%noe became of length of service or dlsablllty, shall 

thereafter die from sny oause vhstsoever;, or If 

vhlle In service, my member shall die from sny 

oaase growing out of and/or in consequen&e of 

the performance of his duty; or ehall die from 

any oatzse whatsoever after he has become entitled 

to say allowaaoe or pension certificate and, ahell 

leave survlvltxg a vldow, a child or obllW%n under the age of eighteen (18) yeams cm 8 dependent 

pment, said Bd%rd of Trusteesmshall order~pald 

;o~t~lays%;~c~s%follows: (a) to the vldow, 

tl&? e wldow and provi%ecd she 

shall h%ve married such number prffior to his retirement, a mm equel to one-third of the average monthly salary of the deceased at the tlnie of 

his retirement 0% allovanae or death; . . ." 

(Zmphasls added.) 

The Texas Courts have not considered the effeet 

of the annulment of a seoond msrrlage upon the stetus of 

the vldow from % previous marriage. An annulmeat is distlaguished from a divorce In tb%t a "suit for ennulswmt 

presumes that there never was % valid marriage snd that 

therefore It should be deolared void, while %L suit for 

divorce presumes a valid m%rrlage, but asksnthaG$ yletion be dissolved for postnuptial c%uses. i . 
Hon. Q. Frsnk Wllli%m~, page 3 (v-1506) 

G%role, 232 S.W.2d 782, 783 ~(Tex. Clv. App. 1950). A 

decree of annulment contemplates the existence at the 

time of making the marriege contract of an lmpedlment 

sufficient to render the marriage contract void. 

In other jurisdictions It 1s almost invsriably 

the law that once a marriage Is annulled, the decree of 

nullity relates back to the time the marriage was entered 

Into, and voids It from the beginning. See 55 C.J.S. 951, 

Marriage, Sec. 68. 

Pursuing this line of reasoning, courts have 

held, vlth respect to annulled marriages, that where, under a Btstute, marrlsge vi11 legltlmlae a prior born child, 

the child remains lllegltimate If the .smrrlage Is snnulled. 

In re Moncrlef's Will, 235 iV.Y. 390,'139 I3.E. 550 (1923). 

A wife Is entitled to resumption of sllmony paymeuts from 

her first husband after % decree annullln her second mar- 

$!j$$ j 

Slelaheti v. Slelcher, 251 H.Y. &, 167 B.E. 501 

After-amulmeut ,of fier~second ntarriage, a v&n 

is resiored to her status as % wldov entitled to vor@an'B 

compBnaatlon payments. Southern R. Co. v. Baskette, 175 

Tenn. 253, 133 S.W.2d 489 (1939)‘. 

In the Illlnols case of Peoole ex rel. Byrne8 v. 

Retirement Board, 272 Ill. App. 59 (1933)j it was held that 

8 flremen~s widov Is entitled to resumption of her pension 

payments after annulment of her second m%rrl%ge on grounds 

of Impotency under a statute providing the pension should 

"cease If such widow again marries." The court quoted with 

approval the Solloving language from another c%se regarding 

an annulled m%rrlage: 

11 

. . . annulment, when decreed, puts an 

end to it from the beginning . . . (Cmlttlng 

cases cited.) It Is not dissolved as upon 

dlvor$e. It Is effaced as If It had never 

been. 

TM court quoted also from Tiffeny on Domestic Relations: 

"After a decree of nullity, hovever, In 

the lifetime of the parties, the marriage Is 

void ab inltlo, and not merely from the date 

of the decree. . . . In other words, It is 

just as though no nuwrlage had ever taken 

place." 

This case Is, of course, directly In point on your question. 
. ‘, 

Hon. 0. Frauk WllU.%ms, page 4 (V-1506) 

%vWthe16tBB, sme eO&S &?htsle rseegaixed that 

atriot iu#weedestPMte tohe t%ctrlw of Rreletlon bask" of 

nullltg~43%~ produos lmjllBt Peanlts, particularly upon 

peame not,prty.te the anzmluent~proecedlag. Therefore, 

the3 oetmts v¶Xl in va3ny lnst%nces refuse to apply tge rule 

~wsCvL11~~ke exeeptlatt~4% It besed upon general equltabli prluoi~lts. See Amnotation, 2 A.L.R. 26 637. In gen8~~1, tfse~~%ppllaaticm of the rule vi11 be vlthheld as to 

tm?msactlons concluded during the 

Csllov v. Thoxm, 322 &ES. 550, 78??i:1id6~:3?ij. 

There appears to be no equitable reason vhy the 

annulPant of the laarrisge betveen the p%rtiee here lnvelved 

,xhould not be given effect to nullify the xmrriege fa Its 

inception. It Is therefore our oglnlon that the wldov, under the decree, "remained a widow %ad 16~ ,en,titled to reln- 

%tatemei&t to pension ellglblllty as a flrem%n8s vldov. In 

pe Morten~B’Eetak, 224 B.Y.S. 75 (Sum. Ct. 1927); Soutsrrrt 

Ft. Co. w. Basketk, smra; PeoDle.ex rel. Byrne8 v. Retlreisent Board, BUUI’B. 

A flreman~s vldow vho remarries and 

whose marriage Is Bubsequeatlg annulled 

1s entitled to be rastcred to pension eligibility under Artlale 62436, V.C.S. 

APPROVJZD: 

lOed XcDanlel 

State Affairs Dl~i~lon 

E. Jacobson 

Reviewing Assistant 

Yours very truly, 

PRICE DABIEZ 

Attorney General 

Charles S. Mathews 

Firat Asslst%nt 

RSL/LC/RT '