Saudi Arabia enacted the Personal Status Law (PSL) in 2022. Saudi officials described it as a groundbreaking development but various human rights organizations criticised it for providing insufficient protections to women regarding marriage, custody, and divorce. One year prior to the announcement of the PSL, Chibli Mallat argued that Saudi family law “draws on a solid set of legal precedent” and that codification would not hold much significance. This article argues that the PSL represents a positive change in Saudi’s approach towards child custody by prioritizing the best interests of the child.

Historical Context and the Evolution of Child Custody in KSA

Historically, Saudi’s approach to child custody has been marked by inconsistency and has not always prioritized children’s well-being. Case law often favored fathers based on Islamic law, which designates the father as the natural guardian and allows mothers to retain custody only until their children reach a certain age (seven for boys and puberty for girls). The absence of codified family law led to varying interpretations of Islamic principles by individual judges, resulting in unpredictable and sometimes harmful outcomes for both children and mothers.

The unfortunate 2006 Ghosoun and Areej cases highlighted this unpredictability. These cases involved young girls who died due to abuse inflicted by their fathers. Despite evidence of domestic violence, custody was granted to the fathers, reflecting traditional interpretations that favored paternal custody. These cases illustrated the severe consequences of decisions that failed to prioritize the child’s best interests. They also demonstrated how rigid adherence to traditional custody norms, without considering the child’s welfare, could lead to devastating outcomes.

Even in cases where courts intended to prioritize children’s best interests, the application of Islamic law and the absence of clear regulations could result in such tragedies.

PSL: A Landmark Shift in Custody Law

PSL introduces substantial reforms to the country’s custody framework, finding a balance between Islamic principles and modern child welfare considerations. Under the PSL, fathers remain natural guardians (Art. 124), while mothers receive primary custody (Art. 126, 127). Children stay with the custodial parent until age 15, after which they can choose their preferred parent until 18 (Art. 135) – this applies equally to both genders, eliminating disparities present in Islamic law.

Crucially, the PSL mandates that courts prioritize the child’s best interests in custody decisions, addressing a principle that was previously applied inconsistently. The law also introduces nuanced provisions that reflect a more progressive approach. For instance, it requires the mother’s consent for extended international travel when the father has custody (Art. 129) and protects a mother’s custodial rights even if she leaves the marital home due to disputes (Art. 133). A significant change in the PSL is allowing remarried mothers to maintain custody when it benefits the child (Art. 126), shifting from previous court decisions that denied custody upon remarriage of the mother. The law also ensures non-custodial parents have visitation rights (Art. 134(1)).

Assessing the Impact of PSL

Some critics argue that the PSL merely codifies existing practices and lacks the “revolutionary” changes claimed in official communications. However, this view overlooks several crucial aspects.

Firstly, while some judges had been granting extended custody to mothers before, the law now standardizes this approach across the Kingdom, ensuring consistency and predictability. While progressive judgments existed in the past, they were not the norm but rather exceptions.

Secondly, by extending maternal custody and granting mothers greater decision-making powers, the law formally acknowledges the crucial role of mothers in the upbringing of their children.

Finally, the PSL shifts the burden of proof regarding custody from the mother to the father. Custody is now automatically granted to the mother unless the father can prove in court that she is unfit (Art. 127).

Conclusion

The PSL establishes clear legal guidelines for child custody in the KSA, empowering women by giving them greater agency in marital decisions to remarry after divorce without the fear of losing custody of their children.

From the Western human rights perspective, PSL might contain elements of gender discrimination, particularly given that fathers retain legal guardianship and make crucial decisions about their children under Islamic law. However, this perspective fails to account for the broader legal context in KSA. Prior to the enactment of the PSL, several laws were introduced that equated custody with guardianship in certain cases, demonstrating a gradual progression towards more equitable parental rights.

It is crucial to view these changes through the lens of the country’s unique legal and cultural landscape. Legal reforms must conform to Islamic law, as the Qur’an and Sunnah serve as the Constitution of the Kingdom of Saudi Arabia under its Basic Law of Governance of 1992. The PSL can be seen as pushing the boundaries of reform as far as possible within the current legal framework. Moreover, the PSL should be viewed as part of Vision 2030, a broader initiative to diversify the country’s economy, empower women, and reform the social and legal landscape of KSA. In this context, the PSL signifies a meaningful step towards aligning Saudi family law with international standards while respecting cultural and religious norms.