TIE ATTBRNES GENERAL 

OPI'EXAS 

AUSTIN~ TEXAS 18711 

January 4, 1971 

Honorable Ned Granger 

County Attorney 

Opinion No. M- 768 

Travis County Courthouse 

Austin, Texas 

Dear Mr. Granger 8 

Re: Applicability of the sixmonth waiting provision of 

Section 3.66 of the Texas 

Family Code to a person 

seeking to obtain a Texas 

marriage license within 

six months after his 

divorce in another state. 

your recent letter requesting the opinion of this 

office concerning the referenced matter states, in part, as 

follows: 

"If a husband and wife obtain a divorce in 

another state which does not have the six-month 

waiting period similar to the one in Section 3.66 

of the Texas Family Code, may a county clerk's 

office in a Texas county properly issue a marriage 

license to one of the parties who moves into Texas 

prior to the expiration of the six-month waiting 

period required by the Texas statute?" 

In our answer to your question, we assume that the 

out-of-state divorced party seeking a Texas marriage license 

has received neither the waiver of the six-month remarriage 

prohibition of Section 3.66 of the Texas Family Code that is 

provided in that Section, nor a waiver by the county judge, 

pursuant to Section 1.05 of the Code, of the necessity of furnishing information to a county clerk concerning prior divorces 

(cf. Attorney General's Opinion No. M-604 (1970)). 

Section 3.66 of the Texas Family Code provides as 

follows: 

"Neither party to a divorce may marry a 

third party for a period of six months immediately 

-X746- 
Honorable Ned Granger, page 2 (M-768) 

following the date the divorce is decreed, but ,' 

the parties divorced may marry each other ate any 

time. The court urantinq the divorce, for good 

cause shown, may at the time of the divorce decree 

or thereafter waive the prohibitionof this section 

as to either or both parties." (Emphasis added.) 

While the issue posed by your question is one of first 

impression in this State, the applicable law has been stated as 

follows: 

"Sometimes a remarriage in one state following a divorce obtained in another state is attacked 

on the ground that the law of the marrying state, 

or of some third state! contained a prohibition 

against remarriage that should be applied., regardless of whether the divorcing state had such a 

prohibition. Courts considerinq'this .auestion 

have qenerallv concluded that statutorv prohibitions., 

aqainst remarriaqe after divorce are limited to 

divorces qranted within the state havinq such prohibition, and will not be aoolied to persons 

divorced in other states, althouqh there is‘some 

authoritv to the contrarv." 52 Am.Jur.2d 942, 

Marriage, Sec. 91. (Emphasis added.) 

See, also, 27A Corpus Juris Secundum 770-71, Divorce, Sec. 182, 

The majority view, that statutory prohibitions against 

remarriage after divorce are limited to divorces granted by the 

state having such prohibition, is supported by the following 

authorities: In Re Kinkead's Estate, 57 N.W.2d 628 (Minn, Sup. 

1953); In Re Donlav's Estate, 111 N.Y.Supp.Zd 253, (N.Y. App, 

Div. 1952); Lembcke v. United States, 181 F.2d 703 (2nd Cir. 

1950); Pickard v, Pickard, 45 N.W.Zd 269 (Iowa Sup. 1950): 

Fitzqerald v, Fitzqerald, 246 N.W. 680 (Wise. Sup, 1933): Smith 

v. Goldsmith, 134 So. 651 (Ala. Sup. 1931); Reqer v. Reqer, 293 

S.W. 414 (MO, Sup. 1927); Sparks v. Sparks, 284 S.W. 1111 (Ky, 

Sup. 1926); Farrell v. Farrell, 181 N.W. 12 (Iowa Sup. 1921): 

State v. Bentlev, 53 Atl. 1068 (Vt. Sup. '1903); and Phillins v. 

Kadrid, 22 Atl. 114 (Me. Sup. 1891). 

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. 

Honorable Ned Granger, page 3 (M-768) 

The minority view, which sanctions the application of 

a marrying state's prohibition on remarriage to persons divorced 

in other states, is set forth in the following authorities: In 

Re Naturalization of Mavall, 154 F.Supp. 556 (E.D.Pa. 1957); 

Mosholder v. Industrial Commission, 160 N.E. 835 (Ill. Sup. 1928); 

Stevens v. Stevens, 136 N.E. 785 (Ill. Sup. 1922); Smith v. Woodworth, 44 Barb. 198 (N.Y.); and Kalmbacher v. Kalmbacher, 63 Pa. 

D & C 195 (Pa.). 

While your question does not present a genuine choiceof-law situation, it is apposite to note that the applicable 

conflict of laws rule is that prohibitions against remarriage 

after divorce are generally construed to have no extraterritorial effect. See, =.q., Louahran v. Loushran, 292 U.S. 216, a. 

denied, 292 U.S. 615 (1934): Vickers v. Faubion, 224 S.W. 803 

(Tex.Civ,App. 1920, no writ). 

In our view, the substance of your question is: Does 

the wording of Section 3.66 of the Texas Family Code, quoted 

supra, apply to a person seeking a Texas marriage license who 

has received an out-of-state divorce within the six months preceding the date of his license application? 

The broad language of the Section does not exempt from 

its prohibition a person who obtained an out-of-state divorce, 

nor does the language of the Section that is underscored exempt 

the recipient of an out-of-state divorce from obtaining the 

waiver, However t the underscored portion of the statute could 

logically apply only to persons divorced in the courts of this 

State, as that underscored language can have no effect on the 

divorce laws of other states, as shown by the authorities cited 

next above. 

After an examination of the authorities cited hereinabove in support of the majority and minority views concerning 

the issue posed by your question, we are of the opinion that the 

reasoning of the majority of the courts that have considered your 

question is the sounder and more cogent. We are further of the 

opinion that it was the intent of the Legislature that the prohibition contained in Section 3.66 was to be applicable only to 

pers'ons who obtain divorces in this State. 

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. . 

Honorable Ned Granger, page 4 (M-768) 

Pursuant to Section 1.03(b)(4) of the Family Code, the 

application form for a marriage license contains a space to be 

filled in by the applicant in which he indicates if he has been 

divorced within the preceding six-month period. Section 1.07(c) 

of the Code provides: 

"If it is revealed that either applicant has 

been divorced during the six-month period preceding 

the date of the application, the county clerk shall 

not issue the license unless it is shown that the 

subsequent marriage within the six-month period is 

permitted under Section 3.66 of this code." 

;, 

This provision refers only to those persons divorced 

in Texas, and thus you are advised that, in view of the requirements of Sections 1.03(b)(4) and 1.07(c), supra, the following 

procedure should be followed by a county clerk when a license is 

issued to a person who has obtained an out-of-state divorce, The 

person must complete the marriage license application form in full, 

answering in the affirmative in the space relating to a prior divorce D The clerk shall then issue a license to the applicant, 

in consonance with the holding of this Opinion and our construal 

of Section l.O7(c)'s lack of application to the situation presented by your question. 

Accordingly, your question is answered in the affirmative, 

SUMMARY 

The six months prohibition on remarriage 

after a divorce that is contained in Section 3.66 

of the Texas Family Code applies only to persons 

who have secured a divorce from a Texas court. 

The prohibition does not apply to a person seeking 

a marriage license in Texas who, within the sixmonth period preceding the date of his marriage 

license application, has been divorced in another 

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. . I 

Honorable Ned Granger, page 5 (M-768) 

state. Such person may, therefore, be issued a 

marriage license by a Texas county clerk at any 

time after his divorce, in any state other than 

Texas, has become final. 

/ 

Very /i ruly yours, 

/ .I - 

General of Texas 

Prepared by Austin C. Bray, Jr. 

Assistant Attorney General 

APPROVED: 

OPINION COMMITTEE 

Kerns Taylor, Chairman 

W. E. Allen, Co-Chairman 

Arthur Sandlin 

Sally Phillips 

James Mabry 

Ray McGregor 

MEADE F. GRIFFIN 

Staff Legal Assistant 

ALFREDWALKER 

Executive Assistant 

NOLAWHITE 

First Assistant 

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