           TIE       ATTBRNES             GENERAL
                         OPI'EXAS
                      AUSTIN~   TEXAS    18711


                            January4, 1971

Honorable Ned Granger             Opinion No. M- 768
County Attorney
Travis County Courthouse          Re:    Applicability of the six-
Austin, Texas                            month 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
Dear Mr. Granger 8                       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 fur-
nishing 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 ateany
     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 follow-
    ing 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.,regard-
    less 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 pro-
    hibition, 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).


                                -3747-
.




    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. Wood-
    worth, 44 Barb. 198 (N.Y.); and Kalmbacher v. Kalmbacher, 63 Pa.
    D & C 195 (Pa.).

              While your question does not present a genuine choice-
    of-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 extraterritor-
    ial 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 pre-
    ceding 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 herein-
    above 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 pro-
    hibition contained in Section 3.66 was to be applicable only to
    pers'onswho obtain divorces in this State.

                                -3748-
                                                            .      .




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 require-
ments 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 di-
vorce 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 pre-
sented 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 six-
     month period preceding the date of his marriage
     license application, has been divorced in another




                                -3749-
.   .   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




                                            -3750-
