Cafes of divorce
fiif-
pended upon
acts which
admit of frequent
repetition.
the prefent cafe the fécond divorce is not decreed, on account of the
doubt in which the matter is involved ; yet (as was already obferved)
caution didtates that this be confidered as' amounting to two di-
vorces.
* Ie a man fay to his wife “ if you converfe-with Zeyd and Amroo,
“ you are under three divorces,” and he afterwards give her a fingle
divorce, and (he become feparated by the accomplilhment of her Edit,
and fhe then converfe with Zeyd, and afterwards again marry her
former hufband, and then converfe again with Amroo, fhe falls under
two divorces together with the firft.— In all three divorces,— Ziffer
maintains that on this occafion no divorce whatever takes place.—
This pafe may be confidered in four different views :— f ir s t , wh®
both the conditions appear, to wit, converfe with both Zeyd ?.:g
Amroo within marriage, in which cafe divorce would follow evidently
;— s e c o n d l y , where both conditions appear without marriage, in
which cafe divorce does not take place, the reafon of which is alfo
evident;— t h ir d l y , where the firft condition exifts within marriage
and the fecond without +, in which cafe likewife divorce does not take
place, as that penalty cannot follow without the exiftence of the marriage;—
and f o u r t h l y , where the firft condition exifts without
marriage, and the lecond within it — and this is the cafe concerning *
* In this and.the fucceeding paffages a matter muft be adverted to which it is neceflary
to underftand, in order that their fenfe may be fully comprehended.— When, a man Pr0' :
nouces two or- three conditional divorcés, théfe remain fo far in force that they recul’ upon
the recurrence of the condition, even after an intervening marriage y but any divorce by
which that marriage may have been diffolved is then counted in with that which thus, recurs
upon the recurrence of the condition.
f That is to fay, where the firft occurs within the firft marriage and. the fepond intermediately
between the diffolution of that and the commencement of the fecond mat'
adage.
J That is to fay, where the fir ji occurs intermediately between the diffolution of thefr/l
marriage, and the commencement of the fe c o n d and the fecond within the fécond 111 ar'
riage, .
which
mm! m H | I Z
which Ziffer differs from out doftors,— Thp argument of Ziffer- is.,
that a;s the exiftence ;of marriage is conditional to the divorce taking,
place aft the time of the occurrence of the laft condition, fo -it is in the
fame manner conditional at the time of the occurrence .of the f r f
condition, becaufe they are both (with refpect to the rule of divorce)
as one thing, fiuce that divorce cannot poftibly take place without the
concurrence o f both of them.— T o this our dodtprs reply that the cafe
now under eonfiderafcion is a vow, which, being an ad): affedling the
maker -of it, refts upon his competency; now the exiftence of marriage
at the period of fufpenfion, (that is, o f making the vow,) is
made conditional, in order that the penalty may to a certainty enfue
at the period of the conditions fpecified taking place: and, in the prefent
cafe, marriage actually exifting at the period of fufpenfion, the
vow holds good; and the exiftence o f marriage is alio rendered conditional
at the time of the condition being completely fulfilled, in order
that the penalty may take place wit Inn marriage; becaufe this penalty
is divorce, which cannot take place but within marriage': but, in the
prefent cafe, the time of the occurrence of the firft condition is neither
a. period within which the vow has any force, nor in which the
penalty can take place; wherefore that interval is confidered merely
as the time o f the continuance o f the vow, to which the exiftence of
marriage is not abfolutely neceflary, as it depends upon the vower,
a vow being an adf peculiarly affedling the maker of it, as was already
remarked.
k I
* If a man fay to his wife “ if you enter this houfe you are under
“ three divorces,” and he afterwards repudiate her by two exprefs
divorces, and her Edit be fulfilled; and fhe be afterwards married to
another man, and he have carnal connexion with her, and divorce
her ; apd fhe be then married to her firft hufband, and after that
* This and the following are termed cafes o f obliteration. Th e y are more -fully treated
«funder.the article Aiia,
V o l . L N n
Cafe of a man
firft procuring
a conditional
divorce
and then repudiating
his
wife by two
exprefs divorces
;
enter