Family law in Saudi Arabia requires complex navigation between Islamic jurisprudence and state law. In this article, Beata Polok and Zubair Abbasi take a closer look at how the new Personal Status Law has affected child custody.
The recent codification of the Personal Status Law (PSL) in Saudi Arabia represents a significant development in the country's legal framework, particularly with regard to women's rights in custody disputes. The PSL, which officially came into force in March 2022, represents the Saudi government's formal endorsement of laws that give priority to maternal custody, which is seen as an important step towards gender equality under Islamic law.
Historical context and legal practice
In the past, Saudi courts have interpreted Islamic law on a case-by-case basis, resulting in inconsistent decisions regarding child custody. This system allowed judges to interpret the relevant legal sources at their own discretion based on their understanding of Islamic principles and their personal moral beliefs. This practice of ijtihad, as enshrined in Article 48 of the Saudi Basic Law, whereby judges independently interpreted religious texts according to the “rules of Islamic Sharia,” often resulted in differing and inconsistent decisions in similar cases. This had the effect of undermining the predictability of legal outcomes and making it difficult for lawyers to rely on established precedents.
Long before the PSL, Saudi courts often prioritized the best interests of the child and awarded custody to mothers, although this was traditionally at age 7 for boys and 9 for girls. This legal practice reflected a gradual but significant shift toward women's empowerment under Sharia (Islamic law).
The introduction of the PSL is seen as a logical evolution of these legal trends. By codifying what courts have previously practiced, the law provides a standardised approach that is consistent with Islamic principles and previous court cases, while protecting women's rights.
The new law sets out the conditions under which custody is granted and ensures that the best interests of the child are given priority. This reduces the arbitrariness previously associated with judicial discretion and makes custody decisions more predictable and fair. The replication of existing case law practices increases the likelihood that the law will be accepted and implemented by the courts.
At the same time, the PSL's efforts to promote women's rights represent a significant advance in the field of Islamic jurisprudence. It is therefore in line with the broader goals of Vision 2030, which aims to improve the efficiency and transparency of the judiciary and the protection of human rights.
Important reforms to custody in the Civil Status Act
The Personal Status Act enshrines several important reforms aimed at standardising and strengthening custody rights for women:
The PSL is consistent with similar reforms in other Muslim-majority countries that have codified family laws to strengthen women's rights. In Morocco, the 2004 Mudawana (Family Code) introduced significant reforms, including greater maternal custody rights and restrictions on judicial discretion. In Tunisia, the 1956 Tunisian Personal Status Code was one of the earliest examples of codified family law in the Muslim world and set a precedent for legal reforms promoting gender equality within the institution of the family.
guardianship
In the context of children's rights, guardianship has different meanings; it is seen as a responsibility rather than a right. The PSL also codifies the classical Islamic rule on parental responsibility, designating the father as the guardian of the child (Article 137).
Importantly, the law also allows the court to appoint a guardian. The gender of the guardian is not specified in the PSL, so both men and women can act as guardians, as the prerogative belongs to the father.
The PSL can also be seen as a formalization of previous judicial practices that sought to blur the distinction between custody and guardianship. For example, the 2014 Judicial Council decision granted guardianship rights to divorced women who had been granted custody of their children. In an effort to expand guardianship responsibilities more equitably between men and women, the Saudi government passed amendments to various laws in 2016 and 2019. These amendments include issuing family IDs to Saudi women who are divorced, widowed, or married to foreigners, and allowing mothers with sole custody of their children to apply for passports and other important documents and to grant travel permits to their children without requiring the consent of a male guardian.
Balance between tradition and modernity in legal reform
While the PSL is not revolutionary as it introduces entirely new concepts, its significance lies in formally recognizing and strengthening women's rights in childcare as derived from the teachings of Islam. This legal development is a testament to the Saudi government's efforts to modernize its legal system to respect and integrate Islamic law while promoting gender equality.
The PSL is an important development in the process of legal reform in Saudi Arabia as it codifies and affirms women's rights in child custody matters. This move underscores the empowerment of women within the traditional legal system and sets a precedent for future legal developments.
Photo by Anas Maqsood on Unsplash
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