Opinion No. 60-01
January 6, 1960
TO: Mr. Jack L. Love Assistant District Attorney Fifth Judicial District Lovington, New Mexico
QUESTION
QUESTIONS
1. Is a divorced woman a "married woman" within the meaning of § 3-2-10, N.M.S.A., 1953 Compilation, relating to registration of electors for elections?
2. Is a widow a "married woman" within the meaning of the same section?
CONCLUSIONS
1. No, but see analysis.
2. No, but see analysis.
OPINION
{*333} ANALYSIS
Section 3-2-10, N.M.S.A., 1953 Compilation, relating to the entering of names of electors on the registration affidavit provided for by § 3-2-7, reads as follows:
"3-2-10. Entering registrants' names on affidavits -- Married woman to use husband's given name. -- The names of persons registering must be in the proper spaces provided therefor, 'Mr.,' 'Mrs.' or 'Miss' following each name. All married women shall register according to the name of the husband and not by the wife's given name." (Emphasis supplied).
Thus, if Mary Jane Doe is married to John A. Doe, she must register as Mrs. John A. Doe and not as Mrs. Mary Jane Doe.
We turn now to your first question. Unquestionably, a woman who has become, under the laws of this State, divorced from her husband cannot be considered as a married woman. Under our statutes, as found in §§ 22-7-1 through 22-7-22, N.M.S.A., 1953 Compilation, the decree of divorce completely severs the bonds of matrimony between husband and wife, since a limited divorce from bed and board, known at common law as a divorce a mensa et thoro, has never been recognized in New Mexico. Poteet v. Poteet, 45 N.M. 214, 114 P. 2d 91. Therefore, if a woman is divorced in this State or absolutely divorced in any other jurisdiction which grants a divorce recognized by this State, she must, under § 3-2-10, register in her given name, and not according to the name of her husband, because she is not a "married woman". If, however, she is only divorced a mensa et thoro in a jurisdiction allowing such a divorce, she must register according to the name of her husband, since such a limited divorce does not sever the marriage bonds. Poteet v. Poteet, supra; Radermacher v. Radermacher, 61 Ida. 261, 100 P. 2d 955; Dougherty v. Dougherty, 187 Md. 21, 48 A. 2d 451. Further, it goes without saying that when a divorced woman remarries, she must then register according to the name of her husband.
Turning now to your second question, the rule is that a marriage is ended by the death of one of the parties. 35 Am. Jur., Marriage, {*334} § 7. Therefore, it follows that since a widow is the surviving wife of a deceased husband, she is no longer married, since the marriage lasts only through the joint lives of the husband and wife. People v. Service Recognition Board, 403 Ill. 442, 86 N.E., 2d 357, 361; In re Crook's Estate, 140 Misc. 721, 252 N.Y.S. 373. However, if the widow remarries, she is generally considered to no longer be a widow, unless a particular fact situation or statutory language requires a contrary result. People v. Service Recognition Board, supra; McDaniel v. Sloan, 157 Tenn. 686, 11 S.W. 2d 894. There is nothing in § 3-2-10 which indicates that a widow is to be considered as a married woman. Likewise, it appears that a widow who remarries must be considered as a married woman and, accordingly, must register according to her husband's name and not by her given name.
We are aware of our Opinions Nos. 6399 and 57-309, which held that a married woman who filed a declaration of candidacy under § 3-11-43 need not use the name by which she is registered, but could use her own given name. However, as the learned writer of Opinion No. 57-309 pointed out, § 3-11-43 does not have the same requirements as § 3-2-10. See also Opinion No. 58-61 in which the writer concluded that a married woman who was registered under her maiden name had to file her declaration of candidacy under her married surname, although she may use her given name instead of her husband's given name.
By: Philip R. Ashby
Assistant Attorney General
1959
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