Family law in Saudi Arabia requires complex navigation of 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 rights.

The recent codification of the Personal Status Law (PSL) in Saudi Arabia marks a significant development in the country’s legal framework, particularly concerning women’s rights in child custody disputes. The PSL, officially enacted in March 2022, represents the Saudi government’s formal endorsement of laws that prioritise mother’s custody rights, seen as a significant step towards gender equality under Islamic law.

Historical context and judicial practice

Historically, Saudi courts have interpreted Islamic law on a case-by-case basis, leading to inconsistent rulings on child custody. This system allowed judges discretion to interpret the relevant legal sources based on their understanding of Islamic principles and personal moral beliefs. This practice of ijtihad, as enshrined in Article 48 of the Saudi Basic Law of Governance, where judges independently interpreted religious texts according to ‘the rules of Islamic Sharia’, often led to varying and disparate rulings on similar cases. As a result, the predictability of legal outcomes was undermined, making it challenging for lawyers to rely on established judicial precedents.

Long before the PSL, Saudi courts frequently prioritised the best interests of the child, often granting custody to mothers beyond the traditionally prescribed ages of 7 years for boys and 9 years for girls. These judicial practices highlighted a gradual but clear shift towards empowering women within the scope of Sharia (Islamic law).

The introduction of the PSL is seen as a logical progression of these judicial trends. By codifying what courts had been practicing, the law provides a standardised approach that aligns with Islamic principles and past court procedure, while also protecting women’s rights.

The new law specifies conditions under which custody is granted, ensuring that the child’s well-being is paramount. This reduces the arbitrariness previously associated with judicial discretion, making custody decisions more predictable and fair. The law’s reiteration of existing judicial practices enhances its likelihood of acceptance and implementation by the courts.

Simultaneously, the PSL’s efforts to promote women’s rights represent a significant advancement within the ambit of Islamic jurisprudence. By doing so, it aligns with the broader objectives of Vision 2030, which aims to enhance judicial efficiency, transparency, and the protection of human rights.

Key reforms on child custody in the Personal Status Law

The Personal Status Law has codified several crucial reforms aimed at standardising and enhancing child custody rights for women:

The PSL aligns with similar reforms in other Muslim-majority countries that have codified family laws to enhance women’s rights. In Morocco, the ‘Mudawana (Family Code) of 2004’ introduced significant reforms including greater custody rights for mothers, and limitations on judicial discretion. Similarly, in Tunisia, the ‘Tunisian Personal Status Code of 1956’ was one of the earliest examples of codified family law in the Muslim world, setting a precedent for legal reforms that promote gender equality within the institution of family.

Guardianship

In the context of children’s rights, guardianship has different connotations; it is seen as more of a responsibility 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. Here, the PSL does not specify the guardian’s gender, allowing both men and women to serve as a guardian following the first right afforded to the father.

The PSL might also be seen as formalising earlier court practices which attempted to blur the distinction between custody and guardianship. For instance, the Judicial Council Decision of 2014 granted guardianship rights to divorced women who had been awarded custody of their children. In efforts to expand guardianship duties more equally between men and women, the Saudi government adopted amendments to various laws in 2016 and 2019. These changes include issuing family ID cards to Saudi women who are divorced, widowed, or married to foreigners, and allowing mothers with primary custody of their children to apply for passports and other important documents, and to grant permission for their children to travel, without needing consent from a male guardian.

Balancing tradition and modernity in legal reform

While the PSL is not revolutionary in introducing entirely new concepts, its importance lies in the formal recognition and reinforcement of women’s rights in child custody as derived from Islamic teachings. This legal development is a testament to the Saudi government’s efforts to modernise its legal system in a way that respects and incorporates Islamic law while promoting gender equality.

The PSL is an important development in the process of Saudi Arabia’s legal reform because it codified and endorsed women’s rights in custody matters. This move underscores women’s empowerment within the traditional legal system and sets a precedent for future legal developments.

Photo by Anas Maqsood on Unsplash

Note: This article gives the views of the author, not the position of LSE Religion and Global Society nor the London School of Economics and Political Science.  

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