                     August II, I952

Hon. G. Frank W~~~~PJES
Plreme~~s Pension Comleeloner
702 Trlbune~~BulIdlng
Austin, Texas              Oplnlon Bo. v-1506
                             Re:   Effeot of a m%mlage
                                   and subeequeut%mnal-
                                   luentthereof upon the
                                   pension ellglbllltyof
Dear Mr. Wllllam~:                 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 approxlmate-
    ly 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 Flre-
    m%n and that her penelon payments be reswved
    inasmuch a8 she claims the Courts set aside
    the purportednuwriage a8 'held for naught.'"
            The decree of annulment mentioned in your letter
provides:
         "It Is thereforeOrdered, Adjudged and
    Decreed by the court that the purported m%r-
    rlage 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 impotenceof de-
    fendant at the time of the purported uriiage
                                                            ,




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


     and eny and all other grounds alleged in
     plaintifflspetition, and that said mar-
     risge is in nowlse binding upon the
     plaintiff."
          Your question is whether after the snnulment
decree above mentioned the widow Is entitled to rein-
statement of the psnslon.

         Article 4628, V.C.S., provt%es tbet:
                       relation may be dissolved
         "The ~lmrrrfsge
    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 lmpe6lmentthat renders such
    contract void, and the court m%y decree the
    marriage to be null and void.
          Section I.2of 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 be-
     came 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&eof
     the performanceof his duty; or ehall die from
     any oatzsewhatsoeverafter he has becomeentitled
     to say allowaaoe or pension certificateand,ahell
     leave survlvltxga vldow, a child or obllW%n un-
     der the age of eighteen (18) yeams cm 8 dependent
     pment, said Bd%rd of Trusteesmshallorder~pald
     ;o~t~lays%;~c~s%follows:        (a) to the vldow,
          tl&?       e       wldow and provi%ecdshe
     shall h%ve married such number prffior
                                          to his re-
     tirement, a mm equel to one-third of the aver-
     age monthly salary of the deceased at the tlnieof
     his retirement 0% allovanae or death; . . ."
     (Zmphaslsadded.)
          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 dis-
tlaguished 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 %Lsuit for
divorce presumes a valid m%rrlage, but asksnthaG$     y-
letion be dissolved for postnuptialc%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 contemplatesthe existence at the
time of making the marriege contract of an lmpedlment
sufficientto render the marriage contract void.
          In other jurisdictionsIt 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, un-
der a Btstute, marrlsge vi11 legltlmlaea prior born child,
the child remains lllegltimateIf 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-
        Slelahetiv. Slelcher, 251 H.Y. &,       167 B.E. 501
$!j$$j   After-amulmeut    ,of fier~second ntarriage,a v&n
is resiored to her status as % wldov entitled to vor@an'B
compBnaatlonpayments. Southern R. Co. v. Baskette, 175
Tenn. 253, 133 S.W.2d 489 (1939)‘.

          In the Illlnols case of Peoole ex rel. Byrne8 v.
RetirementBoard, 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 Impotencyunder 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   &?htslerseegaixed that
atriot iu#weedestPMte
                   to the t%ctrlw of Rreletlonbask" of
nullltg~43%~produos lmjllBtPeanlts, particularlyupon
peame not,prty.te the anzmluent~proecedlag. Therefore,
the3oetmts v¶Xl in va3nylnst%ncesrefuse to apply tge rule
~wsCvL11~~ke exeeptlatt~   ~4%It besed upon general equlta-
bli prluoi~lts. See Amnotation, 2 A.L.R. 26 637. In gen-
8~~1, tfse~~%ppllaaticm of the rule vi11 be vlthheld as to
tm?msactlonsconcluded 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 laarrisgebetveen the p%rtiee here lnvelved
,xhouldnot be given effect to nullify the xmrriege fa     Its
inception. It Is therefore our oglnlon that the wldov, un-
der the decree, "remaineda widow %ad 16~ ,en,titled  to reln-
%tatemei&tto pension ellglbllltyas 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. Retlre-
isentBoard, BUUI’B.




               A flreman~s vldow vho remarries and
          whose marriage Is Bubsequeatlgannulled
          1s entitled to be rastcred to pension eli-
          gibility under Artlale 62436, V.C.S.

APPROVJZD:                          Yours very truly,
lOedXcDanlel                          PRICE DABIEZ
State Affairs Dl~i~lon              Attorney General
E. Jacobson
Reviewing Assistant
Charles S. Mathews
Firat Asslst%nt
RSL/LC/RT    '
