Introducing…A Codified Personal Status Law
in Saudi Arabia
By Hussam Al Thiyabi
Since the cabinet's approval of the Personal Status Law — following the endorsement by the Shura Council — Saudi Arabia passed a written law that deals with family matters covering issues that were under debate for several decades due to the absence of written rules. The current law is considered a significant step in the effort to protect human rights and uphold international judicial standards; it provides definite provisions for various personal status issues and eliminates the need for judicial interpretation.
Judicial Practices before the New Legislation
In the past, the common practice for dealing with personal status cases was based on the judge's discretion, implying inconsistency as there were cases in which similar cases in front of different judges would have different outcomes. In contrast to the Common Law system, where the judge depends on case law in that the same facts produce the same outcome unless the judge believes otherwise—and then publicly justifies that ruling. The old practice was unfair as often their only hope was that the assigned judge understood their issue and delivered a fair, reasonable verdict. In cases of child custody or alimony with the same facts, the outcomes were usually different based on a judge's discretion. Of course, an initial verdict was not necessarily final as an appeals court could reject the first court ruling. However, appeals are a tricky issue and there was a high level of stress on people litigating for their rights since they were based on a judge's discretionary reasoning and judicial interpretation. The personal status law changes this system.
The Aim of the Personal Status Law
The purpose of the Personal Status Law is to preserve families, ensure their stability — as the essential component of society — and improve their status by codifying the necessities and limiting the discretionary power of the judges. The law was part of several legislative reforms announced by Crown Prince Mohammed bin Salman that aim to increase judicial efficiency, promote transparency, enhance living quality, and protect human rights. The law draws on a blend of Islamic principles and modern international judicial practices accepted as common custom. Therefore, the Personal Status Law plays a significant role in resolving family-related, sometimes controversial issues. One of these issues, for example, is in article (44), which ascribes the responsibility for the alimony or expenses for children from unknown parents to the state. In addition, the law set conditions for granting child custody in article 125, namely: 1. complete eligibility, 2. the ability to raise, 3. keep and care for the child, 4. safely from danger and dangerous infectious diseases. Hence, in case of a disagreement between the couple over their child’s custody, the judge would have to rely on these conditions and not exceed the coding. Also, article 127 states custody is one of the duties of both parents as long as the marriage exists between them. In case of separation, the custody will be handed to the mother as the primary person to have the right to the child, and only in case the conditions are not fulfilled the control will go to the father.
The Personal Status Law streamlined law and common custom, where the judicial discretion is limited to what has been written. As part of the Saudi Vision 2030, in terms of reforming the legislative system, Saudi Arabia is drafting and enacting several laws to help create an essential level of prediction in relation to court judgments and raise the country's judicial integrity by reducing inconsistencies in judicial judgments. All in all, this legal development is an important watershed in Saudi Arabia's legal history. It reflects the main developments that are underway as the country bolts towards the completion of the Saudi Vision 2030.
26 September 2022