From ... in Literature Social issues — Mar 8, 2023

Saudi Arabia: Law Enshrines Male Guardianship

(Beirut) – Saudi Arabia’s first codified law on personal status, issued on International Women’s Day in 2022, formally enshrines male guardianship over women, Human Rights Watch said today.

The law contains discriminatory provisions against women concerning marriage, divorce, and decisions about their children.

The Personal Status Law, issued on March 8, 2022, came into effect on June 18, with Crown Prince Mohammed bin Salman and other Saudi government officials touting the law as “comprehensive” and “progressive.” However, the law codifies discriminatory practices and includes provisions that facilitate domestic violence and sexual abuse in marriage.

The law also uses vague language that gives judges wide discretion when adjudicating cases, increasing the likelihood of inconsistent interpretations. “On International Women’s Day last year, the Saudi authorities proclaimed they had passed a ‘progressive’ Personal Status Law, but instead simply enshrined discrimination against women into the legal code,” said Rothna Begum, senior women’s rights researcher at Human Rights Watch. “The government should amend this and other laws to guarantee women’s rights, and ensure that the rights of women are respected in practice.” Saudi women’s rights activists long campaigned for a codified Personal Status Law that would end discrimination against women. However, the authorities provided them with no opportunity to offer input for this law, as the bill was not made public before it was adopted. In recent years, Saudi women’s rights activists have faced arbitrary arrest and detention, torture, and travel bans.

The Personal Status Law requires women to obtain a male guardian’s permission to marry, codifying the country’s longstanding practice. Married women are required to obey their husbands in a “reasonable manner.” A husband’s financial support is specifically contingent on a wife’s “obedience,” and she can lose her right to such support if she refuses without a “legitimate excuse” to have sex with him, move to or live in the marital home, or travel with him.

The law further states that neither spouse may abstain from sexual relations or cohabitation without the other spouse’s consent, implying a marital right to intercourse. While a husband can unilaterally divorce his wife, a woman can only petition a court to dissolve their marriage contract on limited grounds, and must “establish [the] harm” that makes the continuation of marriage “impossible” within those grounds.

The law does not specify what constitutes “harm” or what evidence can be submitted to support a case, leaving judges wide discretion in interpretation and enforcement to maintain the status quo. Fathers remain the default guardians of their children, limiting a mother’s ability to participate fully in decisions related to her child’s social and financial well-being. A mother may not act as her child’s guardian unless a court appoints her, and she will otherwise have limited authority to make decisions for her child’s well-being, even in cases where the parents do not live together and judicial authorities decide that the child should live with the mother. Fathers may appoint alternative guardians for their children, but the law does not give mothers the same ability. Several provisions of the Personal Status Law implicitly deter women, especially mothers, from pursuing divorce or remarriage. A father can seek to terminate a mother’s custody of their child by claiming she is “incompetent,” or if she chooses to remarry anyone who is unknown to the child unless it is in the “best interests of the child.” The law does not define this term, leaving its interpretation up to the presiding judge. Saudi authorities should ensure the Personal Status Law and other Saudi family law regulations guarantee women their rights to enter marriage and obtain a divorce on an equal basis with men, as well as equal rights during marriage, Human Rights Watch said. Further, following separation or dissolution of marriage, women and men should have equal ability to make decisions relating to their children. Decisions regarding a child’s finances, schooling, health care, and place of residence should be made primarily based on the best interests of the child as international standards provide. Saudi Arabia applies its interpretation of Sharia (Islamic law) as its national law and does not have a written penal code, other than some specific laws.

The codification of the Personal Status Law is part of a series of recent or forthcoming legal changes, including proposals for the country’s first written penal code for discretionary crimes and a law of evidence, that figure heavily into Saudi Arabia’s Vision 2030 strategy. Additionally, in January, Saudi authorities amended article 8 of the Saudi Arabian Nationality System, granting the prime minister, who is currently Crown Prince Mohammed bin Salman, the authority to approve citizenship applications.

The amendment provides an added barrier to the existing strict conditions that children of Saudi mothers and non-Saudi fathers have to fulfill to apply for citizenship after they turn 18. Children born to Saudi fathers, however, are automatically granted citizenship at birth. Despite other important reforms to the male guardianship system in recent years, women who are incarcerated still require male guardian permission to leave prison, even upon completion of their sentences, and to obtain some forms of sexual and reproductive health care. Women divorced from Saudi men whom Human Rights Watch interviewed said that husbands can withhold consent if a woman seeks higher education abroad. “Until Saudi women can champion their rights without fear and the law ensures women equal rights as men, Saudi officials’ talk of reform will ring hollow,” Begum said. “The foreign businesses and celebrities who take money from Saudi authorities should stop trying to justify their dealings by pointing to Saudi progress on women’s rights.” Saudi women’s rights activists campaigned for decades for a codified Personal Status Law and reported on the inconsistencies in judgments that discriminated against women. However, they had no opportunity to provide input into the draft Personal Status Law, which was not made public before it was issued on March 8, 2022. Moreover, many women’s rights activists were effectively prevented from commenting publicly about women’s rights as they remain on trial, in detention, or conditionally released on politically motivated charges.

The women’s rights advocates Loujain al-Hathloul, Nassimah al-Sadah, and Samar Badawi are banned from travel and under suspended prison sentences, allowing the authorities to return them to prison for any perceived criminal activity including women’s rights activism. In 2021, Human Rights Watch reported on credible accounts of torture by Saudi prison authorities of several women’s rights activists in 2018, including al-Hathloul, with electric shocks, beatings, whippings, and sexual harassment. Male Guardianship and Obedience in Marriage The Personal Status Law under article 157 provides that guardianship ends when a person reaches the age of majority; age 18 under the law. However, it codifies language that women must have a male guardian to marry. Articles 13 and 15 require a male guardian to contract a woman into marriage, irrespective of her age or former marital status. Men do not need such permission and can marry up to four times with no requirement to even have their current wife or wives’ consent to remarry. A woman can be married only to one man. Article 17 sets out the order of those who can act as a woman’s male guardian, starting with her father and moving to various male paternal relatives including her grandfather, brother, uncles, cousins, and finally, a judge if there is no appropriate relative (in practice, all Saudi judges are male).

The law requires both spouses to consent to the marriage and prohibits a woman’s guardian from agreeing to a marriage to which she does not consent. However, even if a woman’s guardian agrees to the marriage, the law allows a woman’s other relatives up to the third degree to object to the marriage taking place if they believe the man is not competent – based on religion or custom – to marry her. When a woman’s primary guardian prevents a marriage, she can apply to the court and the judge can appoint another guardian or act as the woman’s guardian to execute the marriage contract. However, Human Rights Watch has documented Saudi judges’ deferential treatment of a guardian’s opinion regarding the suitability of a marriage, in which they may agree with her guardian and refuse her application to marry. When a woman is married, guardianship transfers from her father to her husband. Under article 42, wives are required to “obey” their husbands in a “reasonable manner.” Article 42 also requires women to breastfeed their children unless there is an impediment.

The same article, while providing for mutual rights between spouses – including to treat each other with respect and kindness and not harm one another – also requires that neither spouse may abstain from sexual relations or cohabitation with the other without the other spouse’s consent, implying a marital right to intercourse. Under articles 45 and 55, if a woman refuses without a “legitimate excuse” to have sex with her husband, move into the marital home he provides or stay overnight there, or travel with him, she loses her right to spousal maintenance (nafaqa) from her husband, which includes food, housing, clothing, and other “basic needs.” A woman who leaves the marital home can lose custody of her child if the child’s “best interest,” which is undefined, necessitates it.

The codification of male guardianship over women and women’s obedience to their husbands in the Personal Status Law facilitates and excuses domestic violence, including sexual abuse in marriage, Human Rights Watch said.

The requirement to obtain consent from the other spouse to abstain from sexual relations is incompatible with the human right to personal autonomy and can lead to women being subjected to sexual assault. Saudi Arabia’s 2013 Law of Protection from Abuse does not fully protect women. It defines abuse as: “Any form of exploitation or physical, psychological, or sexual ill-treatment, or threat thereof, perpetrated by one person against another that exceeds the bounds of the guardianship.” It does not clarify what actions would be permissible within the bounds of guardianship and what would exceed it. It does not explicitly state that marital rape is a crime. Activists have also criticized the failure of Saudi authorities to implement the law. Sexual violence violates several core protected international human rights such as the right to life, security of the person, freedom from torture or other ill-treatment, and the highest attainable standard of physical and mental health. Men can still file cases against their wives, daughters, or female relatives under their guardianship rights for “disobedience,” which previously resulted in the arrest and forcible return to their male guardian’s home or imprisonment. Some Saudi law firms say that women can now hire legal counsel and contest these cases in court within 30 days, putting women for whom legal fees are prohibitive at a disadvantage. Child Marriage Saudi Arabia had no minimum age of marriage until January 2019, when the country’s Shura Council, an advisory body, passed a proposal setting the minimum age of marriage at 18 but leaving exceptions for girls ages 15 to 17 to marry with court approval. Instead of removing those exceptions, the Personal Status Law allows even younger children to marry. Article 9 sets the legal age of marriage as 18. However, it allows courts to authorize the marriage of a child under 18 if they have “reached puberty” – which could be younger than 15 – and if the marriage provides an “established benefit” to the child.

The law does not define “puberty,” though in practice this is understood, for girls, to refer to her first menstruation.

The early marriage approval process can be initiated online with the Justice Ministry and requires evidence such as medical records to prove the child’s “competence.” The most recent population characteristics survey made available by the Saudi General Statistics Authority with the number of marriages disaggregated by age states that over 15,000 Saudi children aged 15 to 17 married in 2017, the overwhelming majority of them girls. Local media continue to report on the prevalence of child marriage in the country. Child marriage violates a host of human rights and has lasting disproportionate effects on girls beyond adolescence, as women and girls struggle with the health effects of becoming pregnant too young and too often. Marriage also interferes with a child’s ability to obtain an education and establish economic independence, and exposes them to domestic violence and marital rape. Divorce The Personal Status Law permits a man to divorce his wife unilaterally by telling her that she is divorced either directly or in writing, with some limits.

The law specifies instances in which the utterance of “talaq” does not count (article 80), including when he becomes so angry that he cannot control his words, and emphasizes that there needs to be “intent” behind the utterance (article 81).

The law requires men to document their divorce to the authorities within 15 days of their declaration. If he does not, though, the woman is only entitled to compensation of no less than the amount of spousal maintenance she is owed from the date of his divorce and her knowledge of it (articles 90 and 91). If a woman wishes to have the same right to unilaterally divorce her husband, her husband would have to agree to it as a provision in the marriage contract, at the time of marriage, as per article 27, which allows couples to stipulate their agreed marriage terms. In practice, however, this is reported to be uncommon as it is seen as shameful to include it or it is not allowed by marriage registrars who view it as being un-Islamic. Otherwise, women have no unilateral right to divorce. A woman can instead request a divorce based on khul', by which her husband consents to the divorce in exchange for compensation.

The compensation may be that she returns money or other goods provided by the groom or his family when they married (her mahr), or a piece of property of similar or equal value to the mahr she received. A woman can also apply to the courts for a faskh, widely understood as a fault-based divorce that either spouse can apply for.

The requirement to compensate for a khul’ divorce disproportionately affects women from lower-income backgrounds, for whom returning all or part of the payment can cause severe financial hardship. Similar payout requirements are not imposed on men who initiate a divorce. As men have to consent to this type of divorce, they can abuse this position of power to pressure women into financially compensating them to get out of abusive marriages. If a woman is unable or unwilling to pay to exit the marriage, she can file for a faskh or fault-based divorce on a number of pre-established grounds outlined in the law.

They include, for instance, failure by the husband to provide nafaqa, or maintenance (article 107), the husband’s abandonment of the marital home for more than four months (article 114), or if the husband does not, or swears he will not, have sex with his wife for four months without a “legitimate excuse” (article 113). Article 108 allows a woman to initiate a divorce on the grounds that her husband has made continuation of life with him “impossible” if she can “establish harm.” However, the law does not define a threshold for what constitutes harm or what can be used to establish it, leaving these terms entirely at the discretion of the presiding judge. Saudi lawyers have noted that audiovisual material, including photos, voice notes, and text messages, which may be the only records of a husband’s abuse that women have, may not be accepted by judges, who often favor items such as medical and police records. Two women formerly married to Saudi men told Human Rights Watch that courts would not accept their text message printouts or voice recordings in their divorce cases. Survivors of physical abuse often struggle to report incidents to the authorities or access social services or court action without a male relative, or because they are discouraged from reporting due to social stigma, especially if their spouse is also a cousin. If the “harm” making life together “impossible” cannot be established but the couple continues to have discord, the law sets out that they are to appoint arbiters from their families to listen, investigate the causes, and aim to reconcile them (article 109). This leaves women in abusive situations vulnerable to being pressured into reconciling.

The law provides that if the arbiters cannot reconcile the couple, then they can recommend divorce, and if the woman is required to compensate the husband it should not exceed the amount she received at the time of marriage, (article 111), ultimately financially sanctioning women again. Moreover, other than during the immediate three-month waiting period following the divorce, during which a woman is prohibited from remarrying (called the ‘idda), the law does not entitle women to any form of financial support following divorce from their former husbands regardless of their contributions during the marriage, even if their childcare duties enabled their husbands to have a career and earn an income. This can make it difficult for women economically dependent on their husbands to leave abusive marriages. Decisions Concerning Children The Personal Status Law provides that following a divorce, children are to be cared for by a “custodian,” the default being the mother, then the father, then the mother’s mother, the father’s mother, or otherwise a custodian whom a court decides is in the child’s interest (article 127).

The custodian must be competent, able to raise and care for the child, and “free of disease” (article 125). However, women are effectively discouraged from remarrying if they have children living with them. Article 126 provides that a woman must not marry a man who is a stranger to a child in her custody unless it is in the child’s “best interest,” a term the law does not define. A father can seek to terminate a mother’s custody of their children on the grounds that either she is no longer a “competent” custodian or because she remarried someone unknown to the child.

There is no provision allowing the mother to contest custody if the child’s father chooses to remarry. If a woman with children living with her wants to remarry, she can only do so if no one else can care for them or if they will face harm by being separated from her, and her new spouse must explicitly consent to her children living in the home. He can revoke this consent at any time “if he is harmed,” regardless of whether this would harm the children. A man, on the other hand, can bring children from previous marriages, his parents, and other people whom he is in charge of supporting into the marital home without his wife’s consent as long as it does not “harm” her. A person may lose their “right to custody” if they move with their child to a place not deemed in the child’s “best interest” (article 128), which is undefined.

The lack of clear guidelines regarding what constitutes the child’s “best interest” risks judicial interpretations of this provision that are harmful to the mother as well as the child. In addition, regardless of whether the court appoints a woman as “custodian” of her child, the law provides that the child’s father remains the default guardian, which includes supervising the child’s interests and managing their finances. Women cannot act as guardians of children unless a court appoints them. Fathers may appoint alternative guardians for their children, but the law does not give mothers the same ability. The Saudi government, in an effort to expand guardianship duties of children more equally with women, adopted amendments to other laws in 2016 and 2019 allowing mothers with primary custody of their children to apply for passports and other important documents for the children, and provide permission for the child to travel, without requiring consent from a male guardian. However, Human Rights Watch has documented that these regulations appear to be inconsistently applied. International Human Rights Obligations Restrictions stemming from the male guardianship system are inconsistent with Saudi Arabia’s international human rights obligations.

The United Nations Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), which Saudi Arabia ratified in 2000, provides that governments should take all appropriate measures to eliminate discrimination against women in all matters relating to marriage and family relations. This includes ensuring that women have rights on an equal basis with men to enter into marriage, during marriage, and to obtain a divorce.

The CEDAW Committee, responsible for monitoring state compliance with CEDAW, in its General Recommendation No. 29 on marriage, family relations and their dissolution, calls on governments to recognize the value of indirect, including non-monetary, contributions made by a spouse to property acquired during a marriage. CEDAW also obligates governments to ensure that women and men have the same rights and responsibilities in matters relating to their children, where the children’s interests are paramount.

The importance of the right to autonomy to the exercise of women’s rights is illustrated by numerous rights established in CEDAW, notably the right of women to legal capacity identical to men in civil matters (article 15), the right to freedom of movement and free choice with respect to women’s residences (article 15.4), as well as the same conditions of access and the right to non-discrimination in education and employment (article 10 and 11, respectively). Article 18 of the UN Convention on the Rights of the Child (CRC), which Saudi Arabia ratified in 1996, requires that both parents participate in their child’s “upbringing and development.” The CRC Committee says that decisions regarding a child’s finances, schooling, health care, and place of residence should be made primarily based on the best interest of the child, as defined by international human rights law. Article 19 of the CRC obligates governments to protect children from abuse; the legal loophole allowing for child marriage violates this requirement. Saudi Arabia ratified the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment in 1997.

The Committee against Torture – responsible for monitoring state compliance with the Convention against Torture – together with the CEDAW Committee recognizes that violence against women including domestic violence and marital rape constitutes a breach of a person’s fundamental rights to life, liberty, and freedom from torture.

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