Saudi Arabia: Family Law

CHILD CUSTODY LAW IN SAUDI ARABIA

By Jeremy D. Morley

Saudi Arabia's child custody rules are those of the Sharia. Unlike other countries in the region, there is no codification of the law of personal status in Saudi Arabia. Article 48 of the Saudi Basic Law of Governance ("Basic Law") provides that, "The Courts shall apply rules of the Islamic Sharia in cases that are brought before them, according to the Holy Qur'an and the Sunna, and according to laws which are decreed by the ruler in agreement with the Holy Qur'an and the Sunna." Other provisions of the Basic Law stress that Sharia Law is the governing law.

Saudi Arabia is not a party to the Hague Convention on the Civil Aspects of International Child Abduction. Although the U.S. and Saudi Arabia signed a Memorandum of Understanding about child abduction and access, it contains little more than pious hopes about future cooperation and it provides no rights whatsoever to left-behind parents.

Custody cases in Saudi Arabia are almost always handled by Sharia courts applying Sharia law. The application of the Sharia in specific cases is the exclusive province of male judges. There are no women judges in the Sharia courts. Judges usually follow the Hanbali school of Islam, which is the strict traditionalist school of jurisprudence in Sunni Islam.

Sharia law provides a fundamental distinction between guardianship ("wilaya") and physical custody ("hadhana"). Guardianship is akin to legal custody. The guardian of a child must always be a man. The guardian is automatically the child's father and if the guardian is unable to serve as such another male person in the paternal line must be appointed as the child's guardian. By "custody," as that term is applied in Saudi Arabia, is meant physical custody, sometimes described as baby-sitting duty. Non-Saudi mothers do not have the right to travel with their children, enroll them in school, or relocate to a place other than the general location of the father.

The mother of a child is usually given physical custody if she is a Saudi Muslim. Non-Saudi mothers might receive physical custody in the discretion of the Sharia judge, provided she resides in Saudi Arabia and is a "good Muslim." All Saudi citizens are considered to be Muslim. Fathers who oppose the mother being given physical custody typically assert that the mother has acted immorally, perhaps by speaking inappropriately to another man or by disrespecting her husband or his family or by failing to inculcate correct values in the children.

A Saudi court can sever a mother's custody if it finds that the mother is incapable of safeguarding the child or of bringing the child up in accordance with the appropriate religious standards. The mother can also lose custody in Saudi Arabia by re-marrying a non-Muslim, or by residing in a home with non-relatives. Sharia law allows custody of children to be awarded to the closest male relative of a Saudi father in the case of death or imprisonment of the father, even if the Saudi father has made clear his wish that the children's mother has full custody.

Normally, under Sharia law, a mother can maintain custody of her male children only until the age of nine, and female children only until age seven. Although Sharia court judges have broad and unfettered discretion in custody cases and often make exceptions to these general guidelines.

Custody orders and judgments of foreign courts are not enforceable in Saudi Arabia. Secular foreign divorce orders are not recognized by the Sharia courts.

The laws and practices in Saudi Arabia discriminate against women in many other ways. For example, the highly authoritative U.S. Department of State Country Report on Human Rights Practices for Saudi Arabia states that:

  • In some cases, the testimony of a woman equals half that of a man. Judges have discretion to discount the testimony of nonpracticing Sunni Muslims, Shia Muslims, or persons of other religions.
  • The law does not recognize spousal rape as a crime.
  • Most rape cases are likely unreported because victims face societal and familial reprisal, including diminished marriage opportunities, criminal sanctions up to imprisonment, or accusations of adultery or sexual relations outside of marriage, which are punishable under sharia.”
  • Muslim women may not marry non-Muslims, but Muslim men may marry non-Muslim women.
  • In divorce proceedings women must demonstrate legally specified grounds for divorce, but men may divorce without giving cause.

One might think that the dangers of marrying Saudi nationals and living in Saudi Arabia would by now have been sufficiently well publicized as to cause Western nationals, especially Western women, to steer clear of living in Saudi Arabia with a Saudi spouse. Similarly, great caution should be exercised if a Saudi parent wishes to take a child for a visit to that country over the good faith fear of the other parent that the child might never be returned.

Unfortunately, many still fail to heed the warnings and contact international family law counsel after the fact.

Foreigners who intend to marry Saudi nationals or to live in Saudi Arabia should be warned that their “family law” rights are likely to be extremely limited, especially if they have children and especially if their spouse is a Muslim man.

We have represented numerous clients of various nationalities and faiths who have been in Saudi Arabia. We have provided expert testimony on such issues to courts in the U.S. and Canada.

Providing wise and experienced legal counsel to international families for many years

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