HIV/AIDS AND MARRIAGE LAWS IN NIGERIA: TOWARDS PROVIDING A LEGAL FRAMEWORK FOR PREMARITAL COUNSELLING

Abstract

There is a common practice where parties to marriage contract are advised and/or subjected to HIV/AIDS testing due to the prevalence of the disease. In spite of this practice however, some persons concealed or forged and/or connived with, when they were diagnosed as having AIDS or HIV infected engages in marriage contract without having first disclosing or informing the other that he or she is infected. What seems to hinder this practice or aids the non-disclosure of one’s health status to another is that it is not backed by any law. Most marriages are products of law though, Nigeria does not have unitary legal system, and instead, Nigeria’s sources of law are common law, statutes, Islamic and Customary law (referred to as legal pluralism). The work briefly discusses the nature of marriage institution as well as the history and impact of HIV/AIDS in Nigeria. It also discusses the propriety of mandating parties to a marriage contract to be diagnosed or tested before marriage to ensure the marriageability or fitness or healthiness of the parties with a view to curbing the epidemic. The writer also discusses marriage under the statutory marriage, Islamic and Customary law as well as the religious and cultural practices governing and surrounding marriage which seem to encourage or contribute the transmission of the disease to innocent marriage couples. These types of marriages have acknowledged incurable defects both as a condition for marriage and valid ground for divorce. Due to the considerable harm which this virus does to large number of innocent people through marriages, the writer suggests the enactment of Public Health Code to punish any person who knows he or she has been diagnosed as having HIV/AIDS engages in sexual intercourse in marriage or otherwise with another person without having first informed the other person that he or she is HIV/AIDS infected.