Is our marriage legal if my husband's divorce papers read that he could not remarry for 60 days?
Full Question:
Answer:
The constitutionality of the Alabama statutes restricting the right to remarry is unsettled in the courts. Please see the following AL case law and relevant statutes:
The following is from G.G. v. R.S.G., 668 So.2d 828 (Ala.Civ.App. 1995):
"When a judgment has been entered granting a divorce in this
state, the court shall order that neither party shall again
marry, except to each other, until 60 days after the judgment
is entered, and that if an appeal is taken within 60 days,
neither party shall again marry, except to each other, during
the pendency of said appeal.
Section 30-2-8 specifically deals with the right of a party
to a divorce to remarry. The statute says in pertinent part:
"In making his judgment, the judge shall, as the
evidence and the nature of the case may warrant,
direct whether the party against whom the judgment
of divorce is made be permitted to marry again,
and where in judgments no order is made
disallowing the party the right to marry again,
the party shall be deemed to have the right to
remarry, subject to the restrictions set out in
§ 30-2-10. In cases where the right is
affirmatively disallowed to the divorced party to
remarry, it shall be competent for the judge, upon
motion and proper proof, to allow the moving party
to marry again, as justice may seem to require."
As the majority points out, the United States Supreme Court
has recognized that "the right to marry is of fundamental
importance," Zablocki v. Redhail, 434 U.S. 374, 383,
98 S.Ct. 673, 679, 54 L.Ed.2d 618 (1978), and has established that "the
right to marry is part of the fundamental 'right of privacy'
implicit in the Fourteenth Amendment's Due Process Clause." Id.
In discussing the right to marry, the Supreme Court said,
"We deal with a right of privacy older than the
Bill of Rights — older than our political parties,
older than our school system. Marriage is a coming
together for better or for worse, hopefully
enduring, and intimate to the degree of being
sacred. It is an association that promotes a way of
life, not causes; a harmony in living, not
political faiths; a bilateral loyalty, not
commercial or social projects. Yet it is an
association for as noble a purpose as any involved
in our prior decisions."
Griswold v. Connecticut, 381 U.S. 479, 486, 85 S.Ct. 1678,
1682, 14 L.Ed.2d 510 (1965).
Because § 30-2-8 interferes with one's fundamental right to
marry, the state must show a compelling interest for having the
statute. The statute does not suggest what interest the state
is trying to promote in prohibiting some divorcing people from
remarrying. Additionally, I believe it is important to note
that the attorney general waived participation in this action.
The state has offered this court no interest, compelling or
otherwise, that the statute was designed to serve. The majority
says that "it is not difficult to conceive of instances where sufficient important
state interests exist where the exercise of a trial court's
discretionary authority to prohibit remarriage may be
justified, such as mental illness, public health concerns, or
fraud." Granted, these examples could be compelling state
interests. But to pass constitutional muster, the statute also
must be narrowly tailored to achieve that interest.
Section 30-2-8 gives the trial court unbridled discretion to
decide who cannot remarry. The statute is broadly written to
allow the trial court to forbid a party's remarriage "as the
evidence and nature of the case may warrant." Further, the
trial court can prevent a party from remarrying until "proper
proof" is shown as to why the party should be allowed to
remarry. Nothing in the statute guides the trial court as to
what cases may warrant prohibiting the remarriage of the
parties. The same conduct or condition that would cause one
judge to prevent a party from remarrying might be entirely
permissible under another judge. Because of the broad
discretion the statute gives to trial courts, similarly
situated parties in the same circuit may or may not be allowed
to remarry based simply upon the luck of the draw as to which
trial court hears their divorces. Clearly, the statute is too
vague and cannot pass constitutional muster. Regardless of what
compelling state interests the majority thinks the statute
might advance, the statute is not tailored narrowly enough to
achieve only those interests.
Portions of § 30-2-8 interfere with the fundamental right of
marriage. The state has not come forth with any compelling
interest that is advanced by the statute. Even if there were a
compelling state interest involved, the statute is not drawn
narrowly enough to achieve only that interest. It is for these
reasons that I would hold that those portions of § 30-2-8
allowing a trial court to prohibit a divorcing party from
remarrying are unconstitutional."
The following are GA statutes:
§ 30-2-8. Proceedings generally; right of remarriage.
The proceeding must, in all respects, be conducted as other
civil actions, except as herein otherwise directed. The cause
for which the divorce is sought must be alleged in the
complaint, to which the other party must be made a defendant.
If service by publication shall be made, when necessary, in the
manner provided in the Alabama Rules of Civil Procedure. In
making his judgment, the judge shall, as the evidence and the
nature of the case may warrant, direct whether the party
against whom the judgment of divorce is made be permitted to
marry again, and where in judgments no order is made
disallowing the party the right to marry again, the party shall
be deemed to have the right to remarry, subject to the
restrictions set out in section 30-2-10. In cases where the
right is affirmatively disallowed to the divorced party to
remarry, it shall be competent for the judge, upon motion and
proper proof, to allow the moving party to marry again, as
justice may seem to require.
§ 30-2-9. Validation of marriage of divorced persons where remarriage not
specifically prohibited by divorce judgment.
The marriages of all persons married subsequent to a divorce
judgment granted in this state which did not prohibit the
person from remarrying are hereby declared to be valid,
notwithstanding that the judgment of divorce did not
specifically confer on such person the right to remarry.
This section shall not be deemed to abridge in any way the
force and effect of section 30-2-10.
§ 30-2-10. Sixty-day restriction on remarriage of parties after grant of
divorce or pending appeal of divorce.
When a judgment has been entered granting a divorce in this
state, the court shall order that neither party shall again
marry, except to each other, until 60 days after the judgment
is entered, and that if an appeal is taken within 60 days,
neither party shall again marry, except to each other, during
the pendency of said appeal.