CHILD CUSTODY LAW IN SAUDI ARABIA
By Jeremy D. Morley
Saudi Arabia's child custody rules are those of the Sharia, as codified in the Personal Status Law adopted in March 2022. Article 251 of that law provides that, “For all that is not specifically provided for in the present Law, the provisions of the Islamic Sharia that are the most consistent with the preferences of the present Law shall be applicable.” Furthermore, 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 handled by Sharia courts applying Sharia law. There are no women judges in Saudi Arabia.
Sharia law provides a fundamental distinction between guardianship ("wilaya") and physical custody ("hadhana"). Guardianship is somewhat akin to “legal custody.” It includes the determination of the city and country in which the child will reside. 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.” These rules are now codified in the Personal Status Law.
Other traditional principles will likely continue to apply. Thus, a Saudi court can sever a mother's custody if it finds that the mother is incapable of safeguarding the child or of raising the child in accordance with the appropriate religious standards. The mother might also lose custody in Saudi Arabia by re-marrying a non-Muslim, or by residing in a home with non-relatives.
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.