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Is HIV a Cause For Divorce?

KERIM KOCAMAN AYSE ECEM DUTAL
Is HIV a Cause For Divorce?

If the patient was aware of the illness before the marriage: If the couple did not take the HIV test before the marriage and the partner who is not sick did not know his/her partner was sick, then the intended wife/husband needed to be informed about his/her partner’s health situation. The law specified the obligatory tests to take before marriage, and the HIV test is not one of them. Theoretically, forcing a couple to take the HIV test is against the law. However, in practice, most register offices ask for the test. The list of the documents that the registered office asked for from couples are mentioned below:

  • Blood Type Test,
  • Full Blood Panel,
  • Haemoglobin,
  • VDRL,
  • Anti HCV,
  • Anti HIV,
  • HBsAg,
  • Medical Report.

If the patient knew that he/she was sick and did not inform the partner, annulment of the marriage is possible. The law (TMK 105/2) says the disguisement of a serious health issue could be a reason for an annulment of a marriage if the partner considers it a serious bias.

If the patient informed the partner about the illness: Consent must be given by the intended wife/husband about her/his will for marriage accepting the illness. During the marriage, solely HIV cannot be a basis for requesting a divorce, yet if the virus ruined the family rejoices, the husband/wife could allege the breakdown of the marriage for divorce.

If the partner is HIV positive and infected from someone whom he/she cheated on during the marriage, and the partner forgives the cheater without knowing the illness: In this case, the cheated husband/wife cannot demand a divorce due to the act of cheat, because, the law says, if you forgive the cheater, then you cannot ask for a divorcement asserting the cheat (TMK 161/3) The logic behind the article is when the partner forgives the cheater, the discrepancy disappears. There is imperfect knowledge in terms of the cheated wife/husband in the present case. He/she did know the cheat but did not have a piece of knowledge about HIV. For this reason, the cheated wife/husband cannot assert the cheating or solely the existence of HIV, but he/she could assert the distrust that breakdowns the marriage for a divorce.

Related Article: HIV Infected Person’s Responsibility in Terms of Criminal Law.

If the patient got sick after the marriage and the husband/wife did not consider it as a problem: In this case, relying on cheating is not possible because of forgiveness (TMK 161). Also, both partners are aware of the sickness. Hence, relying on distrust is not possible, either. If there is a problem in marriage, these problems can be brought forward.


Sources

  • <https://ilkayuyarkaba.av.tr/bulasici-hastalik-bosanma-ve-tazminat/>
  • <https://www.pozitifiz.org/post/hiv-ve-evlilik>
  • <https://www.apexcerrahi.com.tr/evlilik-oncesi-testler/>
  • <https://www.mevzuat.gov.tr/MevzuatMetin/2.3.11682.pdf>
  • <https://www.mondaq.com/turkey/divorce/1157362/hivaids-evlilik-iin-engel-te351kil-eder-mi>
  • <https://www.lexpera.com.tr/>

Related Article: Divorce Proceedings in Turkey For Foreigners.