In your memorandum you wanted to know whether under the law of Alabama it was within
a probate court's jurisdiction to validate a marriage entered into contrary toga provision
in a divorce decree forbidding the husband from remarriage. Your office was of the
opinion that only a circuit court could grant the husband the right of remarriage.
"The file indicates that B~, C~ was divorced from Fredy L. C~ on April 1, 1960, by
the order of the Circuit Court of Calhoun County, Alabama. The divorce decree gave
B~ the right to remarry but forbade Fredy from remarrying. Notwithstanding this restriction,
Fredy, on September 30, 1983, married Ruby B~ in Tuscaloosa, ,Alabama. The marriage
was performed pursuant to a marriage license and solemnized by Probate Judge W. Hardy
M~ In September 1984, Ruby applied for wife's insurance benefits on Fredy's account.
This application was denied because it was determined that Ruby was not Fredy's wife
because Fredy was free to contract a marriage.,
On April 11, 1985, Fredy and Ruby petitioned the Probate Court of Tuscaloosa County,
Alabama, to validate their marriage. On April 16, 1985, Judge M~ signed an order validating
the marriage. In his order, Judge M~ decreed that the restriction in Fredy's divorce
decree was void ab initia as a matter of public policy and because it violated the
Fourteenth Amendment to the United States Constitution and Article one, section one,
of the Alabama Constitution.
Your office was correct in believing that under the law of Alabama only a circuit
court could remove the restriction against remarriage.
Probate courts are courts of limited jurisdiction and have only that jurisdiction
which is expressly given by statute, and neither the probate judge nor the probate
court can have any greater authority than conferred by the statute'. Longshore v. City Homestead, 171 So.2d 453 (Ala. 1965); McCaa v. Grant, 43 Ala, 262 (1869). A probate court does not have jurisdiction of equitable issues.
Byars v. Nixon, 299 So.2d 259 (Ala. 1974). The probate court is a court of law. Sharpe v. Booker, 83 So.2d 313 (Ala. 1955). A probate court's jurisdiction is limited to matters dealing
with the probate of wills, property rights, guardianship and the settlement of guardian
accounts, and to all other processes necessary to. the enforcement of its judgements,
orders and decrees.1/. Gardner v. Gardner, 11 So.2d 852 (Ala. 1943). Jurisdiction of divorce is vested in the circuit courts.
Alabama Code 1975, Section 30-2-1 2/. Phillips v, Phillips, 49 Ala. ADD. 514, 274 So.2d 71, cert denied, 290 Ala. 370, 274 So.2d 80 (1973).
The right of remarriage subsequent to a divorce is controlled by Alabama Code, Section
30-2-8, which provides as follows:
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.
The grant of the right to remarry rests entirely in the discretion of the judge. Ex
Parte ,Edwards, 62 so. 775 (Ala. 1913).
Thus, it is clear that only circuit courts are authorized and empowered to grant the
allowance of remarriage. Furthermore, the entry of such a decree would lie in equity.
This office is of the opinion that the probate court lacked jurisdiction of the subject
matter and, as a result, the decree is a nullity. Moreover, the marriage contracted
in disregard of the restriction is void. Brand v. State, 6 So.2d 446 (Ala. 1941). Therefore, even if the probate court had jurisdiction,
it could not have validated the pre-existing marriage. Section 30-2-8 only permits
a judge of competent. jurisdiction to grant a right of remarriage. It does not give
him the right to validate a prohibited marriage. Brand, supra. ,
Furthermore, the power of. the state over the marital status of residents of Alabama
is complete, unless there is some constitutional restraint. Fuqua v. Fuqua, 104 So.2d 925 (Ala. 1958). Although Probate Judge M~ stated that the prohibition
was unconstitutional and was against public policy, our research does not find support
for that conclusion in either the case law or the statutory law. See, Krug v. Krug, 296 So.2d 715 (Ala. 1974).
Thus., for the foregoing reasons, your office would be warranted in finding the probate
court order to be a nullity and that Fredy and Ruby are not husband and wife.
1/ (a) The probate court shall have original and general jurisdiction as to all matters
mentioned in this section and shall have original and general jurisdiction as to all
other matters which may be conferred upon them by statute, unless the statute so conferring
jurisdiction expressly makes the jurisdiction special or limited.,
(b) The probate court shall have original and general jurisdiction over the following
(1) The probate of wills.
(2) The granting of letters testamentary and of administration and the repeal or revocation
of the same.
(3) All controversies in relation to the right of executorship or of administration.
(4) The settlement of accounts of executors and administrators.
(5) The sale and disposition of the real and personal property belonging to and the
distribution of intestate's estates.
(6) The appointment and removal of guardians for minors and persons of unsound mind.
(7) All controversies as to the right of guardianship and the settlement of guardians'
(8) The allotment of dower in land in the cases provided. by law.
(9) The partition of lands within their counties.
(10) The change of the name of any person residing in their county, upon his filing
a declaration in writing, signed by him, stating the name by which he is known and
the name to which he wishes it to be changed.
(11) Such other cases as jurisdiction is or may be given to such courts by law in
a11 cases to be exercised in the manner prescribed by law.
(c) All orders, judgments and decrees of probate courts shall be accorded the same
validity and presumptions which are accorded 'to judgments and orders of other courts
of general jurisdiction.
_2/ (a) The circuit court has power to divorce persons from the bonds of matrimony,
upon a complaint filed by one of the parties, entitled "In re the marriage of ........
and .......... ," for the causes following:
(1) In favor of either party, when the other was, at the time of the marriage physically
and incurably incapacitated from entering into the marriage state.
(2) For adultery.
(3) For voluntary abandonment from bed and board for one year next preceding the filing
of the complaint.
(4) Imprisonment in the penitentiary of this or any other state for two years, the
sentence being for seven years or longer.
(5) The commission of the crime against nature, whether with mankind or beast, either
before or after marriage.
(6) For becoming addicted after marriage to habitual drunkenness or to habitual use
of opium, morphine, cocaine or other like drug.
(7) Upon application of either the husband or wife, when the court is satisfied from
all the testimony in the case that-there exists such a complete incompatibility of
temperament that the parties can no longer live together.
(8) In favor of either party, when the other, after marriage, shall have been confined
in a mental hospital for a period of five successive years, if such party from whom
a divorce is sought is hopelessly and incurably insane at the time of the filing of
the complaint; provided, however, that the superintendent of the mental hospital in
which such person is confined shall make a certified statement, under oath, that it
is his opinion and belief, after a complete and full study and examination of such
person, that such person is hopelessly and incurably insane.
(9) Upon application of either party, when the court finds there has been an irretrievable
breakdown of the marriage and that further attempts at reconciliation are impractical
or futile and not in the best interests of the parties or family.
(10) In favor of the husband, when the wife was pregnant at the time of marriage,
without his knowledge or agency.
(11) In favor of either party to the marriage when the other has committed actual
violence on his or her person, attended with danger to life or health, or when from
his or her conduct there is reasonable apprehension of such violence.
(12) In favor of the wife when the wife has lived, or shall have lived separate and
apart from the bed and board of the husband for two years and without support from
him for two years next preceding the filing of the complaint, and she has bona fide
resided in this state during said period.