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Saudi
Arabia
Divorce and Family law
The following is an
extract from the anonymous brochure entitled "Marriage to Saudis," which
was published and distributed by the consular bureau of the U.S.
Department of State, from the mid-1990s – and later withdrawn under
pressure:
If the Marriage to a Saudi Fails
In the worst scenario, an American wife can find
herself summarily divorced, deported, and deprived of any right of
visitation with her dual-national children. Sharia law decidedly favors
men in the dissolution of marriage. And the laws of Saudi Arabia require
that all individuals be sponsored by a Saudi citizen in order to receive
a visa, resident or otherwise. Therefore, once a marriage breaks up, the
ex-wife must leave the Kingdom and may only return with the explicit
permission and sponsorship of her ex-husband. (In cases where the Saudi
husband attempts to prevent his spouse from leaving, the Embassy can
call upon Saudi authorities to facilitate the American wife's departure.
The Embassy cannot force a Saudi husband to relinquish the children.)
In one instance, an American who had undergone a
bitter divorce and child custody battle with her Saudi husband, applied
for and received a visa to work with a company located in the Kingdom.
Once the Saudi husband and the Saudi authorities discovered her
presence, she was thrown into jail and ultimately forced to leave her
position and the country.
What custody rights do women have under Sharia law?
Theoretically, a mother should maintain custody of the children until
the ages of 7-9, when their primary care would be transferred to their
father. However, the ultimate objective of a Sharia court in the
settlement of custody issues is that the child be raised a good Muslim.
Whether a convert or not to Islam, an American woman will not overcome
the prejudice against her upbringing and society. The Embassy has no
knowledge of an American or any western woman ever winning custody of
dual-national children in a Sharia court.
Can an American mother flee the Kingdom with her
dual national children? It is impossible to
legally leave the Kingdom without the express permission of the Saudi
husband. A woman who wishes to leave her husband but is pregnant at the
time, can be required to wait until after the birth of the child. The
same would hold true if the Saudi husband passed away: custody of the
children and any unborn child would remain with the closest living Saudi
male relative.
Can an American woman be denied visitation rights
with her children? A Saudi husband must give
explicit permission for a divorced wife to visit her children in the
Kingdom. The Embassy has worked with the Ministry of Foreign Affairs to
create the "no-objection" visa. The ex-husband must be willing to sign a
statement that he has no objection to his ex-wife visiting the Kingdom.
In that statement, the ex-husband establishes how long he is willing to
let his ex-wife remain in the country. The history of no-objection visas
is mixed.
A husband often objects to the emotional disruption of
a visit from the American wife. Often the husband's second wife becomes
jealous, and the American mother finds that her visits are restricted in
time and carried out in full view of the extended Saudi family.
Only one American wife has successfully made
no-objection visits over the course of the last five years. She has been
successful because she speaks Arabic (dual-national children quickly
lose their English skills once their mother departs the Kingdom), has
managed to maintain steady relations with her ex-husband, and reconciled
herself to the fact that her child would spend at least his first 18
years in the Kingdom. If the custody dispute has involved kidnapping by
one or both parents, then by the time the children reach the Kingdom the
father has no interest in facilitating relations with the American
citizen mother. In these cases, all communication can be closed off and
Saudi authorities will not intercede in family disputes. Consular
Officers are rarely permitted to pay "Welfare and Whereabouts" visits.
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The
Saudi Arabian legal system
is based on Shari'a. Shari'a courts exercise jurisdiction over common
criminal cases and civil suits regarding marriage, divorce, child
custody, and inheritance. Such jurisdiction extends to non-Muslims for
crimes committed in the country. Shari'a courts base judgments largely
on their interpretation of the Koran and the Sunna. Cases involving
relatively small penalties are tried in Shari'a summary courts. More
serious crimes are adjudicated in Shari'a courts of common pleas.
Appeals from Shari'a courts are made to the courts of appeal. The
Government permits Shi'a Muslims to use their own legal tradition to
adjudicate noncriminal cases within their community. There is no
comparable right for non-Muslims or foreigners, whose cases are handled
in regular Shari'a courts.
Other civil
proceedings, including those involving claims against the Government and
enforcement of foreign judgments, are held before specialized
administrative tribunals, such as the Commission for the Settlement of
Labor Disputes and the Board of Grievances.
The military justice
system has jurisdiction over uniformed personnel and civil servants that
are charged with violations of military regulations. The Minister of
Defense and Aviation and the King review the decisions of
courts-martial.
The Supreme Judicial
Council is not a court and may not reverse decisions made by a court of
appeals. However, the Council may review lower court decisions and refer
them back to the lower court for reconsideration.
The Council of
Senior Religious Scholars is an autonomous body of 20 senior religious
jurists, including the Minister of Justice. It establishes the legal
principles to guide lower-court judges in deciding cases.
Judges are appointed
by the Justice Ministry and confirmed by the Royal Diwan (Royal Court).
The Ministry exercises judicial, financial, and administrative control
of the courts. The Supreme Judicial Council, whose members appointed by
the King, may discipline or remove judges.
Source: U.S.
Department of State
Source of Law:
The main sources of Saudi law are Hanbali fiqh as set out in a
number of specified classical scholarly treatises by authoritative
jurists, other Hanbali sources, other schools of law, state regulations
and royal decrees (where these are relevant), and custom and practice.
Royal decrees have been
used to direct courts to base judgements on several authoritative
classical treatises by Hanbali jurists (e.g., al-Mughni of ibn
Qudamah). A resolution of the Supreme Judicial Council passed in 1928
also directed the courts to rely on particular Hanbali sources in civil
matters.
Standard Hanbali
fiqh is applied to personal status cases.
Schools of
Fiqh:
The Hanbali
school is the official madhhab in Saudi Arabia. There is also a
Shi'i minority adhering to the Jaf'ari school.
Constitutional
Status:
Saudi Arabia has no
formal constitution. The functions of a constitution are served by the
Basic Law articulating the government's rights and responsibilities
issued by King Fahd in March 1992. Article 1 of the Basic Law declares
Islam the official state religion and the Qur’an and sunnah the
Constitution. The Basic Law also provides that "[t]he state protects the
rights of the people in line with the Islamic shari’a," affirms
the independence of the judiciary and states that administration of
justice is based on "shari’a rules according to the teachings of
the holy Qur’an, the sunnah, and the regulations set by the ruler
provided that they do not contradict the holy Qur’an and sunnah".
Article 9 of the Basic Law states that "the family is the kernel of
Saudi society, and its members shall be brought up on the basis of the
Islamic faith". Article 26 provides that the state protects human rights
"in accordance with the Islamic Shari'a"
Court System:
Shari’a
Courts have general and residual jurisdiction, i.e., jurisdiction over
any case or matter the jurisdiction over which has not been expressly
assigned to another tribunal. There are four levels of shari’a
courts: Minor Courts, General Courts, Cassation Court, and the Supreme
Judicial Council. Civil claims may also go to the Amarah in which
case the Amir attempts to guide the parties in a dispute to a
compromise; the matter is ultimately referred to the courts if a
settlement is not reached. There are also a number of specialized
tribunals for settling disputes in specific areas, such as commercial or
labor law; these specialized tribunals are formed under various
ministries outside of the Ministry of Justice. The highest appellate
tribunal in all matters, the Board of Grievances, is also independent of
the Ministry of Justice, and since its reorganization in 1982 has been
made directly responsible to the King.
Source: Islamic Family Law Project,
Emory University
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Fax: (815) 301-6742
When Is a Saudi Woman Considered an Adult?
Maha Akeel, Arab News.
Nov 2, 2007
It is surprising and
frustrating to see that women in Saudi Arabia, despite all their
achievements, continue to be treated as underage dependents who need and
are forced to be managed by their male guardians.
It is necessary at this point of Saudi women’s history to address this
important issue.
We cannot claim that a Saudi woman has all her Islamic and civil rights
when the system insists on considering her immature, irresponsible and
dependent on her male guardian no matter how old she is, how highly
educated and intelligent she might be or what she has achieved in her
professional career. At what age and under what circumstances is a woman
in Saudi Arabia considered an independent, sane, responsible adult?
We see story after depressing and humiliating story in our daily life
and reported in the newspapers of how women struggle to go about their
normal life without unnecessary complications, let alone fighting for
their rights in the courts or other government institutions. Why does a
young intelligent, ambitious woman needs her guardian’s permission to
enroll in a university or apply for work? Does the system even realize
that this male guardian does not necessarily have the best interests of
the woman when he denies her the right to an education and a job?
At what age is a woman considered old enough to decide to marry whom she
chooses legally even if her male guardian objects because he might have
ulterior motives for not giving his permission, or might force her to
marry someone she does not want? Why is it that the system and society
do not raise objections to a father marrying his 13-year-old daughter to
a 70-year-old man but objects to a 40-year-old woman deciding to marry
someone suitable against her father’s wishes because he would like to
continue benefiting from her teacher salary? Or why does a court
forcefully divorce a happily married couple because some male relative
of the wife objects to the marriage while in another case a woman is
forced to stay married to a man she does not want? Where is taking the
woman’s own opinion in the matter? Doesn’t an adult, mature woman have a
say in matters concerning her own private life? Why is it only the man’s
wishes are looked at?
If these are some extreme and rare examples of male guardians abusing
their authority over the women in their care, what about the daily
obstacles women face if they want to purchase property, apply for
divorce, gain custody of their child, or travel abroad? In all these
cases, she needs a male guarantor or a male representative or permission
from her male guardian. A working woman with sufficient salary and funds
cannot purchase a car in installments without a male guarantor signing
the papers with her. A woman cannot argue her case without a male
representative or finalize legal procedures because judges do not
recognize her ID card and insist on two men identifying her. A woman,
even a 70-year-old woman, cannot travel abroad without the written,
signed and notarized permission of her male guardian, who might be her
son or nephew. Is this the respect we give our mothers, and we know how
highly respected mothers are in Islam?
Simply going to school or to work or going to a hospital for medical
emergency or even shopping is an ordeal for women because we have to
worry about how we will get there without that “reliable” male driver we
so depend on who might be a criminal or a pervert. How can we trust a
woman to raise a child, teach our children and treat our illnesses but
we cannot trust her to be a responsible adult behind the wheel? We have
asked for our right to be licensed to drive a car like any other Muslim
woman in the world because we know there is no religious basis for
denying us that right.
Yet, we are told that society would not accept women driving on the
roads. Assuming that is true, what is being done about that? Are there
any real proposals from society to make driving by women easier and
safer such as, for example, discussions in schools, training women to be
police officers on the roads and in police centers, setting an age limit
or hours of the day or specified zones for women to drive in or even,
resorting to the same requirement, having her male guardian’s permission
to drive?
Again, the issue is at what age and under what circumstances does the
system and society recognize a woman as a responsible, independent adult
who can make her own decision and choices and have full rights as a
citizen?
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Consult Us
concerning the enforceability in the U.S. of a
Saudi divorce
_____________
U.S. State Department, Country
Report on Human Rights Practices – Saudi Arabia - 2005. Released by the
Bureau of Democracy, Human Rights, and Labor.
March 8, 2006.
Extracts:
On April
3, the late King Fahd issued a royal decree endorsing a reorganization
plan for the judiciary proposed by the ministerial committee for
administrative reforms. During the year the government was implementing
the plan under which Shari'a remains the basis for the judicial system.
The government permitted Shi'a Muslims to use their own legal tradition
to adjudicate cases involving domestic issues, inheritance, and Islamic
endowments. However, there were only two judges. The two courts, one in
Al-Hasa and the other in Qatif, handled cases of Shi'a family law.
However, these courts did not have adequate resources to serve the large
Shi'a population in the Eastern Province, and either party to a dispute
can appeal the Shi'a court's decision to a Shari'a (Sunni) court based
on the Hanbali school of jurisprudence.
There was no comparable right for non-Muslims or foreigners, whose cases
were handled in Shari'a courts.
A
woman's testimony does not carry the same weight as that of a man. In a
Shari'a court, the testimony of one man equals that of two women. Under
the Hanbali interpretation of Shari'a followed in the kingdom, judges
may discount the testimony of persons who are not practicing Muslims or
who do not adhere to Hanbali doctrine. Legal sources reported that
testimony by Shi'a was often ignored in courts of law or was deemed to
have less weight than testimony by Sunnis.
Female parties to court proceedings such as divorce and family law cases
generally had to deputize male relatives to speak on their behalf. In
the absence of two witnesses, or four witnesses in the case of adultery,
confessions before a judge were almost always required for criminal
conviction--a situation that has led prosecuting authorities to coerce
confessions from suspects by threats and abuse.
The
government enforced most social and Islamic religious norms, the
government's interpretations of which are matters of law. Women may not
marry noncitizens without government permission; men must obtain
government permission to marry noncitizen women outside the six states
of the Gulf Cooperation Council (GCC). In accordance with Shari'a, women
are prohibited from marrying non-Muslims; men may marry Christians and
Jews, as well as Muslims. The government does not refuse marriage
licenses between Sunni and Shi'a couples; tradition and culture, not
law, restrict marriages between Sunni and Shi'a citizens.
Women
Shari'a prohibits abuse and violence against all innocent persons,
including women. Although the government did not keep statistics on
spousal abuse or other forms of violence against women, such violence
and abuse appeared to be common problems based on anecdotal and media
information available regarding physical spousal abuse and violence
against women. Hospital workers reported that many women were admitted
for treatment of injuries that apparently resulted from spousal
violence; hospitals now are required to report any suspicious injuries
to authorities.
Law and
custom discriminate against women. Although they have the right to own
property and are entitled to financial support from their husbands or
male relatives, women have few political or social rights and were not
treated as equal members of society. There were no active women's rights
groups. Women may not legally drive motor vehicles and were restricted
in their use of public facilities when men were present. Women must
enter city buses by separate rear entrances and sit in specially
designated sections. Women risked arrest by the religious police for
riding in a vehicle driven by a male who was not an employee or a close
male relative. On July 24 the religious police issued a statement that
they never have, and never will, employ women.
The law provides that women may not be admitted to a hospital for
medical treatment without the consent of a male relative; however this
was not generally enforced. By law and custom, women may not undertake
domestic or foreign travel alone.
In public, a woman was expected to wear an abaya (a black garment
that covers the entire body) and also to cover her head and hair. The
religious police generally expected Muslim women to cover their faces,
and non-Muslim women from other countries in Asia and Africa to comply
more fully with local customs of dress than non-Muslim Western women.
During the year, religious police admonished and harassed women who
failed to wear an abaya and hair cover.
Women also were subject to discrimination under Shari'a as interpreted
in the country, which stipulates that daughters receive half the
inheritance awarded to their brothers. While Shari'a provides women with
a basis to own and dispose of property independently, women often were
constrained from asserting such rights because of various legal and
societal barriers, especially regarding employment and freedom of
movement. In a Shari'a court, the testimony of one man equals that of
two women (see section 1.e.). Although Islamic law permits as many as
four wives, polygamy was becoming less common due to demographic and
economic changes. Islamic law enjoins a man to treat each wife equally.
In practice, such equality was left to the discretion of the husband.
The government placed greater restrictions on women than on men
regarding marriage to noncitizens and non-Muslims.
Women must demonstrate legally specified grounds for divorce, but men
may divorce without giving cause. In doing so, men were required to pay
immediately an amount of money agreed upon at the time of the marriage,
which serves as a one-time alimony payment. Women who demonstrate legal
grounds for divorce also were entitled to this alimony. If divorced or
widowed, a Muslim woman normally may keep her children until they attain
a specified age: seven years for boys and nine years for girls. Children
over these ages were awarded to the divorced husband or the deceased
husband's family. Numerous divorced foreign women continued to be
prevented by their former husbands from visiting their children after
divorce. |