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SAUDI ARABIA1 OVERVIEW of MUSLIM FAMILY LAWS & PRACTICES (Updated As at March 2018)

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SAUDI ARABIA1 OVERVIEW of MUSLIM FAMILY LAWS & PRACTICES (Updated As at March 2018) SAUDI ARABIA1 OVERVIEW OF MUSLIM FAMILY LAWS & PRACTICES (Updated as at March 2018) Description Family Law Matter Legislative Framework Case Law Policy Procedure Practice Equality of Article 8 of the Basic Law Saudi Arabia has a A woman is placed According to the 2016 spouses in states that Saudi Arabia is general reservation under the UNDP Human marriage established on the to CEDAW as guardianship of her Development Report, foundation of justice, follows: “In case of husband upon Saudi Arabia ranked 38 Is there a consultation (shura) and contradiction signature of the on the UNDP Human Constitutional equality in compliance with between any term of marriage contract.12 Development Index and provision on Shari’ah.2 The Basic Law the Convention and 50 on the UNDP Gender equality and are does not specifically the norms of Islamic Until 2014, women Inequality Index.15 there exceptions? guarantee gender equality.3 law, the Kingdom is may only have However, according to Are there specific not under obligation access to the the 2016 World laws that recognise to observe the courts for legal Economic Forum Global marriage as a contradictory terms redress if two of her Gender Gap Report, partnership of Under the Judiciary Law of of the Convention.” male relatives Saudi Arabia ranked 141 equals i.e. are 2007, the court system is composed of First instance In addition, Saudi identify them for out of 144 on the Global family laws and/or 16 courts, followed by Courts of Arabia has specific who they are.13 In Gender Gap Index. other laws relating reservations on appeal and finally the 2014, the Supreme to marriage and Articles 9(2) and family relations Supreme Court. The First Judicial Council instance courts are 29(1) of the In September 2016, an codified or 10 issued a decision to composed of the following:4 Convention. unprecedented petition uncodified? If annul the 1 This Musawah project to map Muslim Family Laws globally was led by Zainah Anwar and coordinated by Lead Researcher Sharmila Sharma, with substantive support from Salma Waheedi and students at the International Human Rights Clinic, Harvard Law School. For this Saudi Arabia country table, we would also like to thank Vaishali Sharma and Gianna Ceophas from Harvard Law School, and Hatoon Alfassi and Mida Zantout for their inputs in its preparation. 2 Article 8 of Saudi Arabia’s Basic Law (2005), https://www.constituteproject.org/constitution/Saudi_Arabia_2005.pdf 3 OECD Development Centre, “Saudi Arabia”, Social Institutions and Gender Index, 2013, p. 1, http://www.genderindex.org/sites/default/files/datasheets/SA.pdf 4 Article 9 of the Law of the Judiciary (2007), http://www.wipo.int/wipolex/en/text.jsp?file_id=328937; Esther van Eijk, “Sharia and National Law in Saudi Arabia”, in Sharia Incorporated: A Comparative Overview of the Legal Systems of Twelve Muslim Countries in Past and Present, ed. Jan Michiel Otto (Leiden, The Netherlands: Leiden University Press, 2010), pp. 159-160, codified, what are • General courts; requirement and calling for an end to the the titles of all the • Penal courts; substituted it with male guardianship In April 2017, a royal applicable laws? If • Family courts; system was presented to decree was issued the woman’s codified, do these • Commercial courts; and 14 Royal Court after gaining stating that women national ID. laws apply to all • Labour courts. thousands of signatures. citizens irrespective are not required to The reaction to the of religion? If not, obtain consent from petition from Muslim The Family courts started in do these laws apply their guardians for clerics were diverse. On independent buildings and to all Muslims or services provided to the one hand, the Grand structure in 2014.5 are there different them by government Mufti Sheikh Abdul Aziz agencies “unless codified laws for al-Sheikh proclaimed different sects there is a legal basis that calls to repeal the within Islam? If for this request in guardianship system are uncodified, or if accordance with the “a crime against the Saudi Arabia does not have codified laws do not provisions of Islamic religion of Islam” and codified laws relating to sufficiently address Shari’ah.” However, posed “an existential marriage and the family.6 a particular issue, the implementation threat to Saudi These areas are governed how is the issue of the decree is still society.”17 On the other, by a combination of: (i) addressed e.g. uncertain as it does a member of the Council Shari’ah principles, which in what Muslim school not state under what of Senior Scholars, https://openaccess.leidenuniv.nl/bitstream/ha dle/1887/21170/file221087.pdf?sequence=1; OECD Development Centre, Social Institutions and Gender Index: Saudi Arabia, 2013, p. 1, http://www.genderindex.org/sites/default/files/datasheets/SA.pdf; Saudi Women for Reform, “Saudi Arabia Shadow Report”, Submission to the CEDAW Committee for the 40th Session, 2007, p. 2, http://tbinternet.ohchr.org/Treaties/CEDAW/Shared%20Documents/SAU/INT_CEDAW_NGO_SAU_40_10011_E.pdf. 10 United Nations Treaty Collection Website: https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-8&chapter=4&clang=_en 12 Human Rights Watch, “Boxed in: Women and Saudi Arabia’s Male Guardianship System”, 2016, p. 16, https://www.hrw.org/sites/default/files/report_pdf/saudiarabia0716web.pdf 13 Saudi Women for Reform, “Saudi Arabia Shadow Report”, Submission to the CEDAW Committee for the 40th Session, 2007, p. 12, http://tbinternet.ohchr.org/Treaties/CEDAW/Shared%20Documents/SAU/INT_CEDAW_NGO_SAU_40_10011_E.pdf 15 UNDP, “Human Development Report 2016”, Table 5, pp. 214-217, http://hdr.undp.org/sites/default/files/2016_human_development_report.pdf 16 World Economic Forum, “Global Gender Gap Report 2016”, Table 3, pp. 10-11, http://www3.weforum.org/docs/GGGR16/WEF_Global_Gender_Gap_Report_2016.pdf 5 Information obtained from Saudi advocate, January 2017 6 Esther van Eijk, “Sharia and National Law in Saudi Arabia”, in Sharia Incorporated: A Comparative Overview of the Legal Systems of Twelve Muslim Countries in Past and Present, ed. Jan Michiel Otto (Leiden, The Netherlands: Leiden University Press, 2010), p. 163, https://openaccess.leidenuniv.nl/bitstream/ha dle/1887/21170/file221087.pdf?sequence=1; The Arab Gulf States Institute in Washington, “Personal Status Laws in the Gulf States”, 2016, http://www.agsiw.org/personal-status-laws-in-the-gulf-states-past-event/ 14 Information obtained from Saudi advocate, January 2017 17 Josie Ensor, “Saudis File First-Ever Petition to End Male Guardianship”, The Telegraph, 26 September 2016, http://www.telegraph.co.uk/news/2016/09/26/saudis-file-first-ever-petition-to-end-male-guardianship/ of law is turn is primarily based on the circumstances a Sheikh Abdulla Al- applicable? Do rules of Hanbali woman should or Maneei, declared that these laws explicitly jurisprudence (fiqh) of the should not obtain there is no guardianship state gender- Sunni School; and (ii) judicial the consent of her over adult sane women. stereotypical roles precedence, whereby guardian for A guardian is only between husbands individual judges have services provided to required for marriage.18 and wives e.g. the significant discretionary her. Feminists are of According to information husband is the power when deciding cases the view that the 19 head of the as well as interpreting and decree codifies the on the ground: household or the applying the uncodified laws rights of Saudi • Human rights lawyers wife is the primary relating to marriage and the women to access a and feminists rely on 7 caregiver? family. job, higher Article 8 of the Basic education or medical Law to call upon the procedures and to Saudi government to Applicable CEDAW There is no equality of exit prison, among meet its obligations to ensure gender Provision spouses in marriage. Saudi others without a equality in Saudi Arabia practices a strict male guardian’s Article 16(1)(c) permission.11 Arabia. This is despite guardianship system, which, the fact that the Paras. 17-18 GR21 until April 2017, was phrase “in compliance loosened by a royal decree. with Shari’ah” has Paras. 54-55 GR29 Pending clarification on the proven to be an implementation of the royal obstacle in advocacy decree, all women must work in this regard;20 have a male guardian whose permission must be granted • When adjudicating a for anything from marriage case, a judge is to travel, renting a flat, empowered to rely on medical procedures and their personal 7 Esther van Eijk, “Sharia and National Law in Saudi Arabia”, in Sharia Incorporated: A Comparative Overview of the Legal Systems of Twelve Muslim Countries in Past and Present, ed. Jan Michiel Otto (Leiden, The Netherlands: Leiden University Press, 2010), p. 163, https://openaccess.leidenuniv.nl/bitstream/ha dle/1887/21170/file221087.pdf?sequence=1; OECD Development Centre, Social Institutions and Gender Index: Saudi Arabia, 2013, p. 1, http://www.genderindex.org/sites/default/files/datasheets/SA.pdf 11 Faisal Al Nasser, “Cautious welcome to Saudi decree over guardian system”, Al Jazeera, 6 May 2017, http://www.aljazeera.com/news/2017/05/saudi- decree-guardian-system-170505210416738.html; Lulwa Shalhoub, “Saudi women no longer need guardian’s consent to receive services”, Arab News, 5 May 2017, http://www.arabnews.com/node/1094681/saudi-arabia 18 Fatima Al-Dubais, “There is no guardianship over women except in marriage”, Okaz, 7 September 2016, www.goo.gl/yS2ba0 19 Information obtained from Saudi advocate, January 2017 20 Information obtained from Saudi advocate, January 2017 even exiting prison upon understanding of the serving a sentence. Under theoretically 600 the male guardianship books on Hanbali fiqh. system, initially, a woman is While they may refer under the legal guardianship to the books from the of her father. When she other schools of law, they rarely do.21 marries, her husband becomes her new guardian.
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