### TIE ATTBRNES GENERAL OPI'EXAS
AUSTIN~ **TEXAS** 18711
January4, 1971
Honorable Ned Granger CountyAttorney Opinion No. M- 768 Travis County Courthouse Austin, Texas

Dear Mr. Granger8 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 licensewithin six months after his divorce in another state.
your recent letterrequesting the opinion of this office concerning the referencedmatter states, in part, as follows: "If a husband and wife obtain a divorce in another statewhich 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-monthwaiting period requiredby the Texas statute?"
In our answer to your question,we assume that the out-of-statedivorced 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 concerningprior divorces (cf.Attorney General's OpinionNo. M-604 (1970)).

Section 3.66 of the Texas Family Code provides as follows: "Neitherparty to a divorcemay 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 ateany time. The court urantinq the divorce, for good cause shown,may at the time of the divorce decree or thereafterwaive the prohibitionof this section as to either orboth parties." (Emphasisadded.) While **the** issueposedby your question is one of first impression in this State, the applicable law has been stated as follows: "Sometimesa 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! containeda prohibition against remarriage that shouldbe applied.,regardless of whether the divorcing state had such a prohibition. Courts considerinq'this.auestion have qenerallv concluded that statutorvprohibitions., aqainst remarriaqe after divorce are limited to divorces qrantedwithin the state havinq such prohibition, and will not be aoolied to persons divorced in other states, althouqh there is‘some authoritv to the contrarv." 52Am.Jur.2d 942, Marriage, Sec. 91. (Emphasisadded.) See, also, **27A** Corpus Juris Secundum 770-71,Divorce, Sec. 182,

The majority view, that statutory prohibitionsagainst remarriage after divorce are limited to divorces grantedby the state having such prohibition, is supportedby **the** following authorities: In Re Kinkead's Estate, **57** N.W.2d 628 (Minn,Sup. 1953); In Re Donlav's Estate, 111N.Y.Supp.Zd 253, (N.Y.App, Div. 1952);Lembcke v. United States, 181 F.2d 703 (2ndCir. 1950); Pickard v, Pickard, 45 N.W.Zd 269 (IowaSup. 1950): Fitzqerald v, Fitzqerald, 246N.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, 181N.W. 12 (IowaSup. 1921): State v. Bentlev, 53Atl. 1068 (Vt.Sup. '1903);and Phillins v. Kadrid, 22Atl. 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'sprohibition on **remarriage to**  persons divorced in other states, is set forth in the followingauthorities: In Re Naturalization ofMavall, 154 F.Supp. 556 (E.D.Pa.1957); Mosholder v. IndustrialCommission, 160N.E. 835 (Ill.Sup. 1928); Stevens v. Stevens, 136N.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 prohibitionsagainst **remarriage** after divorce are generally construed to have no extraterritorial effect. See, =.q., Louahran v. Loushran, 292 U.S. 216,a. denied, 292U.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** licensewho has received an out-of-statedivorcewithin the six months preceding **the** date of his licenseapplication?

The broad language of the Section does not exempt from its prohibition a personwho obtained an out-of-statedivorce, nor does the language of the Section that is underscored **exempt** the recipient of an out-of-statedivorce from obtaining the waiver, Howevert the underscoredportion of the statute could logicallyapply 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 shownby the authorities cited next above.

After an examination of the authorities citedhereinabove in support of the majority and minority views concerning the issueposed by your question,we are of the opinion that the reasoning of the majority of the courts that have consideredyour question is the sounder and more cogent. We are further of the opinion that itwas the intent of the Legislature that the prohibition contained in Section 3.66was 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 containsa space to be filled inby the applicant inwhich he indicates if he has been divorcedwithin the preceding six-monthperiod. Section 1.07(c) of the Code provides:

"If it is revealed that either applicanthas been divorced during the six-monthperiod preceding the date of the application, the county clerk shall not issue the licenseunless it is shown that **the** subsequentmarriage within the six-monthperiod 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 shouldbe followedby a county clerkwhen a license is issued to a personwho has obtained an out-of-statedivorce, The person must complete the marriage licenseapplication form in full, answering in the affirmative in the space relating to a prior divorceD The clerk shall then issue a license to the applicant, in consonancewith the holding of this Opinion and our construal of Section l.O7(c)'s lack of application to the situationpresented 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 prohibitiondoes 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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Honorable Ned Granger, page 5 (M-768)

state. Such personmay, therefore,be issued a marriage licenseby a Texas county clerk at any time after his divorce, in any state other than Texas, has become final. / Very/iruly yours, / .I

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General of Texas Preparedby 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 ExecutiveAssistant
NOLAWHITE First Assistant

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