Two years ago the new Personal Status Law was codified, introducing default guidelines for marriage, divorce, and child custody in Saudi Arabia, and changing the relationship between law and Sharia councils. Beata Polok and Zubair Abbasi explain the implications of the law.
The Kingdom of Saudi Arabia has embarked on a transformative journey. Through its Vision 2030, it seeks to reduce reliance on oil by fostering economic diversification.
Crucially, however, this reform agenda also prioritises the inclusion and empowerment of women within Saudi society, seeking to increase women’s participation in public life. Consequently, a wave of legislation has emerged specifically designed to advance the role of women in the workforce, exemplified by the new Personal Status Law (PSL).
The PSL came into effect on 18th June 2022, aiming to modernise the legal framework governing family life by codifying legal principles that were previously subject to the discretion of the judges of Sharia courts who adjudicated on case-by-case basis. The codification of family laws is a welcome development to minimise legal uncertainty and ambiguity.
This short article provides a brief overview of the PSL, highlights its positive features that improve women’s rights, and contexualises it within the broad developments in the legal system of Saudi Arabia.
Why does codification matter for women’s rights?
Globally, the codification of women’s rights law plays a crucial role in advancing and empowering women and it is often viewed as the most effective means of state intervention in addressing women’s rights within the family. As the cases of the Ottoman Law of Family Rights (1917) and the Personal Status Codes in Morocco and Tunisia in the 1950s demonstrate, historically the codification of family laws in many Muslim-majority countries has coincided with legal reform. Therefore, in countries where Muslim personal law is not codified, advocates for women’s rights push for the adoption of a legal code.
In their reports published prior to the 2022 enactment of the PSL in Saudi Arabia, human rights organisations such as Musawah and the Committee on the Elimination of Discrimination against Women (CEDAW) highlighted that the use of uncodified family law has constituted a barrier to gender equality in the Kingdom, where family matters are “addressed on a case-by-case basis” through judicial rulings, allowing the judge’s discretion in interpreting and applying Islamic principles. It was in this context that when the Saudi Cabinet approved the PSL on International Women’s Days, Crown Prince Muhammad Bin Salman described this legal reform as ‘a qualitative leap in the government’s efforts in protecting human rights, consolidating family’s stability, enhancing women’s empowerment and promoting rights.’
What is new in the Personal Status Law?
The PSL includes rules regarding marriage, divorce, child custody, alimony, gifts, wills, and inheritance. While most of these rules simply codify the traditional Islamic law, the PSL also introduces some important reforms. It sets the marriage age at 18 years and authorises courts to allow the marriage of legal minor if they are deemed mature enough to give consent (see Article 9). Similarly, the PSL takes a step forward in recognising women’s autonomy in marriage by limiting the traditional role of a guardian. It does so by empowering judges to allow a female to marry a person of her choice if the guardian’s objection is “unreasonable” (Article 20). The PSL advances women’s rights within the institution of marriage by outlawing the infamous practice of instant divorce, or triple talaq (Article 83) and expanding women’s right to dissolve their marriage based through a judicially supervised process of reconciliation (Articles 109-111). To further strengthen the position of married women, the PSL obliges the husband to financially maintain their wives even when the wives are financially well off (Article 44). It also minimises the financial cost imposed on women seeking divorce (khula’) by limiting the compensation payable by the wife to the husband (Art 101).
According to the media reports, a decade ago it was nearly impossible for mothers to regain custody of their children after they reached the age of seven. Under the PSL, a mother’s right to the custody of children goes beyond the ones provided under traditional Islamic law. It provides the mother with custody rights over their children until they reach 15 years of age. Additionally, children now have the option to remain under their mother’s custody until they turn 18, if they choose to do so (Article 135). The PSL grants the non-custodial parent the right to visit, consult, and accompany the child in custody, subject to mutual agreement. Where mutual agreement is not reached, the court now intervenes and determines appropriate arrangements. Crucially, these provisions provide greater agency to mothers and recognise the importance of their role as carers. This shift towards granting mothers the right to retain custody of their children beyond the age of seven represents a significant change and a notable step towards empowering women.
The PSL also protects the rights of mothers and children by ensuring that a DNA test of a child can only be conducted if the mother gives her consent. And, it reforms the period within which a husband can renounce the paternity of a child, from 40 days to 15 days after the birth. Simultaneously, the PSL allows the mother and the child to establish paternity through the DNA evidence without the consent of the husband/father (Articles 73-75).
One step forward
While the codification of the PSL is a step forward in the process of modernising family law within the Saudi legal system, it has not fulfilled many of the demands of women’s rights activists. Indeed, international human rights organisations have criticised the PSL’s apparent preservation of elements of the male guardianship system. These critics point to provisions that condition women’s rights to guardian consent, and their adherence to traditional roles and obedience to their husbands. They also signal that the PSL leaves a loophole for child marriages by allowing legal minors, aged 17 or less, to marry if they are considered sufficiently mature to give consent (Article 9). It is worth noting here that similar provisions can also be found in the family laws in several European countries such as Poland, Austria and, until its amendment last year, in England.
Nevertheless, despite the disapproval of human rights organisations, there is a growing sense of optimism among Saudis and the global community that the PSL is a positive step forward for a number of reasons. First, it advances women’s and children’s’ rights within the institution of marriage. Second, it fulfils the demand of human rights organisations to curtail the discretion of judges through a systematic code that has an overriding effect over uncodified rules and principles. In this way, the PSL ensures that the outcomes of legal disputes are more consistent and predictable. Third, it makes the law easily-accessible to the public in Saudi Arabia and abroad and thus paves the way for further discussion and reform. Finally, the actual potential of the PSL can only be realised when viewed in the context of the wider legal reforms undertaken within the Kingdom over the past several years. These include measures that increase women’s mobility by revoking the ban on women’s driving, and encourage their workforce participation through anti-harassment laws. The PSL therefore represents a step towards the betterment of women’s rights within the growing changing society of Saudi Arabia.
Photo by Lalezarfa
