                                     February        16,      1970



Hon. Belker D. Paschall,             Jr.             Opinion         No, M-577
County Attorney
Wood County Courthouse                               Re:      Applicability        of,Section
Quitman,  Texas                                               3.66 of the Texas Family
                                                              Code to divorces         granted
                                                              prior    to the effective
                                                              date of such section;           and
                                                              whether     Section8     3.21 and
                                                              3.24    of the Code are con-
                                                              tradictory      and render      one
                                                              or both of those sections
Dear Mr. Paschall:                                            void or Ineffective.
      Your recent   letter          requesting         the     opinion    of this  office
concerning   the referenced            matter       states,       in part,   a8 follows:
                 nI respectfully       request       your      formal    opinion
        on the     following     questions:
               "1 n Is Section     3.66 of the Family         Code en-
        acted by the last Legislature,          regarding      marriage
        within    six months after     divorce,    applicable      where
        divorces     were granted   prior   to the effective         date
        of this     section,  which Is January      1, 19701


              “2 / Are Sections   3.21 and 3.24 contradictory
        to the extent  of rendering   each other void or render-
        ing one or the other void or Ineffective?"
      In regard to your first   question,   apposite    sections  of the
Texas  Family Code, as enacted   in Section    1 of House Bill No, 53
(Act6 61et Leg. R.S.   1969, ch, 888, p0 2706),      are as follows:
               “3 I66   eNeither  party   to a divorce     may marry a
        third   party for a period      of six months immediately
        ?ollowlng     the date the divorce     ie decreed,    but the




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Hon. Belker       D. Paschall,       Jr.,   page 2 (M-577)


      parties      divorced
                         mey marry each other at any
      time.       The court
                         granting    the divorce,    for
      good cause shown, may at the time of the di-
      vorce decree or thereafter      waive the prohl-
      bition  of$thie section     as to either    or both
      parties 0’ ,(Emphasis added. )
                “1.03(b) 0 The application               form   shall   contain:
                       I‘D 0 e




            “1.07(b) 0 The county clerk    shall not
      issue a license    to the applicants  if he knows
      any facts    which would make the marriage  void
      or voidable    under this code.
                “(c)   If   it la revealed   that          either   appll-
      cant      has been    divorced  during the           six-month


      within      the   six-month      period    is     pe;mitted    under
      Section      3.66    of this     code.”         (Emphasis   added. )
       Concealln       a divorce     granted   within    the six-month    period
of Section     3*6 f , supra,     is one of the facts       referred    to in
Section   1.07(b),      supra,   that would make such a marriage           void-
able under the Code.           Section     2.46 (which falls      under Chapter
2 of subchapter        C of the Code, dealing         with the various     types
of voidable      marriages)     of the Code provides        a8 follows:
           “(a) On the suit of a party  to a marriage,
      the marriage is voidable and subject  to annul-
      ment if:
                        “(1) The other party was divorced      from
                a third     party within  the six-month  period
                preceding      the day of the marriage  ceremony,




                                        -2753-
Bon.   Belker     D. Paschall,   Jr.,      page   3 (M-577)


                and the prohibition    a,gainst marrying again
                within the six-month     period was not waived
                under Section    3.66 of this code. e *"
       Section     10 of Rouse Bill        No. 53,   supra,   provides:
              “This Act does not affect       rights    and duties
       that matured,      penalties    that were incurred,     or
         roceedings    that were begun, before       its effective
                   (Emphasis   added.)
      Section  11 of liouse      Bill No. 53,        supra,   provides    that   “This
Act takes effect   January       1, 1970”.
        It is apparent      from the language     of Section      !O of House
Bill No. 53, supra,          that the Legislature      intended    that parties
to actions      for divorce      commenced prior    to January     1, 1970, were
to be governed       by the law In effect       on December 31, 1969.         The
etatutory     predecessor       of Section 3.66,    supre,    was Article    4640;
Vernon’s     Civil   Statetes,     which, until   repealed      by the Code, read
a8 follows:




       Under that statute,     our courts     have held a marriage   in vlo-
lation   thereof   was not void, and neither        party to the divorce    pro-
ceeding    had such a justiciable     Interest    In the remarriage    of the
other as would enable him to maintain           a suit to annul the remar-
rlage.     Evans v. Hunt,
Oreae v. Qress,     209 s.Wt~~‘~~~12~T~~~~I~e~p~tvi~f;lj;       :%i    ~~f~~it)’
                   .R.2d 700; Ex Parte Castro,         115 Ter. 77, 273 S.W.
EgGf?
        It Is our opinion     that the six-month        provisions     of the Code
set forth    hereinabove     must be read in conjunction           with the pro-
visions    of Sections     10 and 11 of House Bill No. 53, supra.               Ac-
cordingly,    the remarriage       rights    of parties    to divorces    granted,
or to divorce      proceedln    a commenced, prior       to January~l,      1970, will
be governed     by Article    & 640,    eupra.



                                        -2754-
Hon. Belker      D. Paechall,       Jr.,      page 4 (~-577)


       The six-month    prohibition   of Section  3.66 of the Code is
applicable     only to those divorces    where proceedings   were commenced
after   January    1, 1970.
      In view of the         foregoing,         your     first    question   Is answered
in the negative.
       Your    second    question     related          to the    following   sections   of
the   Code:
                “3.21.     No suit for divorce      shall  be main-
       tained      unless   at the time the suit is filed        the
         etltloner      has been a domiciliary       of this stz
         or the preceding        12 -man th period   and a resident
       of the county in which the suit is filed              for the
       preceding       six-month    period."     (Emphasis added.)
               "3.24.     If one spouse has been a domieillar~
       of this state        for at least   the la8t 12 months, 2
       apouae domlclled         In another   jurisdiction       may sue
       ?or divorce      in the county where th            domicil  d
       spouse is domiciled         at the time th"e petitioi         is
       filed."       (Emphasis added.)
        We are of the opinion       that the above sections      are neither   ln-
consistent      nor contradictory,      and that they can and therefore       should.
be construed       harmoniously.      Section  3.21,   supra, sets residence.qual-
lflcatlons      that are applicable       only to plaintiffs   who are domlcil-
iaries     of the State     of Texas.
        Section    3.24,    supra,     has no statutory           predecessor     in the former
law.      We believe     the Legislature          intended      to provide      a remedy where-
by out-of-state        domlclllarles         whose spouse has been domiciled                 in the
State     of Texas for at least           12 months would be able to obtain                  a di-
vorce in the courts           of this State without             having ~$0 maintain        a
twelve months'        Texas residence         as a prerequisite           to bringing      a di-
vorce action.         In view of the fact that Section                   3.21,   supra,    clearly
sets the residence          requirements        for all      petitioners       who are domi-
ciliarles      of Texas,     Section      3.24,     supra,    can only be construed            to
apply to petitioners           domiciled      without      the State       of Texas.     We be-
lieve     that is the proper meaning to be given to the clause                          "spouse
domlclled      in another      jurisdiction"         in Section       3.24, supra.
       In view of the fact that we consider     Sections                     3.21   and 3.24,
supra,   to be valid,   effectual,  and not inconsistent,                      your    second
question    Is answered  in the negative.



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.   .   .   -       .




            Hon. Belker         D. Paechall,     Jr.,         page   5 (M-577)


                                                SUMMARY
                                                -------
                               (1)  Section    3.66 of the Texas Family         Code,
                        which prohibits     remarriage      of a party   to a di-
                        vorce suit for a six-month          period after   the date
                        of the divorce     decree,    applies     only to divorce
                        proceedings    commenced after        January  1, 1970.
                                (2)  Section    3.21 of the Texas Family Code
                        sets residence      requirements    for all divorce
                        petitioners     who are domlcillaries      of the State
                        of Texas; Section       3.24 of the Code applies
                        only to divorce      petitioners   wh.o are domiciled
                        In a jurlsdictlon       other than that of the State
                        of Texas.

                                                              Your.pvery    truly,




            Prepared         by Austin    C. Bray,      Jr.
            Assistant         Attorney    General
            APPROVED :
            OPINION COMMITTEE
            Kerns Taylor,   Chairman
            Bill Allen,   Co-Chairman
            John Banks
            Lonny Zwlener
            Charles Parrett
            Woodrow Curtis
            MEADEF. GRIFFIN
            Staff Legal Assistant
            ALFRED WALKER
            Executive         Aaslstant
            EGLA WHITE
            Firat Assistant


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