By Professor Gabriel Sawma
November 29, 2020
Saudi Arabia is one of the most influential countries in the Islamic world; it is the world’s largest exporter of petroleum and oil products and is one of the richest countries in the in its oil reserve. Saudi Arabia is also the custodian of the two holy cities of Meccah and Madinah. The Prophet Muhammad was born in Meccah in 570 A.D., and moved at a later age to Madinah, in which he established the Islamic faith. The main sources of Islam are the Qur’an, which is composed of the revelations that descended on the Prophet during his ministry, and the Hadeeth or Sunnah, which contain the sayings and deeds of the Prophet. Saudi Arabia is a monarchy headed by the Al Saudi royal family, with a council of ministers.
SOURCE OF FMILY LAW IN SAUDI ARABIA
The most important constitutional document is Saudi Arabia is known as The Basic System (or Basic Law) which took effect in 1992. It specifically states that the Qur’an and the Sunnah of the Prophet Muhammad are the Kingdom’s constitution. Article 7 of the Basic System reaffirms Islamic Shari’ah (i.e., Islamic Religious Law) as the foundation of the Kingdom, stating that the government draws its authority from the Qur’an and the Sunnah, and that these two sources govern all administrative regulations of the state. It emphasizes that the role of the state and objectives is to protect the principles of Islam and to enforce its Shari’a. Th Basic System is guided by Islamic law when defining the nature, the objectives, and the responsibilities of the State.
Being the center of Islam, Saudi Arabia embraces the legal, economic, and social percepts of Islam, which acts as a major force in determining the institutional norms, patterns and structures of Saudi society. As such, Islamic faith is not only a religious ideology, but a whole comprehensive social system embracing detailed prescriptions for the entire way of life, and provides guidance to Muslims in all social, political, commercial and economic affairs. It also governs the law of family relations including marriage, divorce, and custody of the children.
Article 1 of the Basic System reads the following: “The Kingdom of Saudi Arabia is a sovereign Arab Islamic State. Its religion is Islam. Its constitution is Almighty God’s Book, The Holy Qur’an, and the Sunna (Traditions) of the Prophet (PBUH). Arabic is the language of the Kingdom. The City of Riyadh is the capital.”
This means laws relating to marriage, divorce, custody of the children and inheritance are not codified; they are governed by Islamic law (shari’a law). Thus, polygamy is permitted for men limited to four wives at any one time. There is no minimum age for marriage and the Grand Mufti reportedly said in 2009 that “girls of the age of 10 or 12 were marriageable.” Saudi mufti okays marriage for 10 year old girls (alarabiya.net)
Men have unilateral right to divorce their wives (Arabic talaq) without judicial interference. The divorce takes effect from the time a husband pronounces the divorce. A woman can only obtain divorce with the consent of the husband or obtain a judicial divorce through Shari’a court.
When divorce occurs, the father has custody of his sons at the age of nine and daughter at the age of seven. The right of a husband to marry up to four wives, combined with his ability to divorce his wife at anytime without cause, can translate to unlimited polygamy.
SAUDI ARABIA IS NOT PARTY TO THE HAGUE CONVENTION
The Kingdom of Saudi Arabia is not party to the Hague Convention on the Civil Aspects of International Child Abduction, nor any international or bilateral treaties in force between Saudi Arabia and the United States dealing with international parental child abduction. The Hague Convention treaty puts into place general guidelines regarding how to handle international child abduction and international custody disputes. Accordingly, there are no legal standards governing the return of kidnapped children from Saudi Arabia. American women marrying Saudi nationals should bear in mind that the children born out of the marriage are considered Saudi citizens by Saudi Arabia, not U.S. citizens. This means the Shari’a court in Saudi Arabia will grant custody of the children to the father in the event of divorce.
American women married to Saudi citizens planning to travel with their children to Saudi Arabia should bear in mind that the husband may not allow the return of the children to USA.
The Saudi husband ask his wife to allow the children to travel to Saudi Arabia for a short vacation. After the children arrived, the father refused to return the children to the U.S. The wife may lose contact with the children after that. The father may refuse all requests from U.S. Embassy in Saudi Arabia for welfare and whereabouts visits.
SAUDI COURTS GENERALLY DO NOT AWARD CUSTODY OF CHILDREN TO NON-SAUDI WOMEN
An American woman married to a Saudi citizen will not be able to obtain a Saudi court judgment of custody of her children unless she resides in Saudi Arabia, or the father is not Muslim. All Saudi citizens are considered to be Muslims.
This author represented numerous clients of various Middle East nationalities including Saudi Arabia. In 2015, I testified in a court in Pennsylvania on behalf of two girls born of an American mother and Saudi father. The court agreed with our testimony and allowed the girls to stay with their mother in the U.S.
In 2016, a desperate American mother of three children, who were residing with their father in Saudi Arabia, were ordered by a court in New Jersey to send the children to USA after my testimony was heard before the judge.
In 2012, I wrote an affidavit to the Supreme Court of Westchester County in New York for recognition of a divorce and custody order from Abu Dhabi. The Judge recognized the foreign court order and granted custody of the children to the mother.
In all the cases that I was privileged to testify before the court, the credit goes to the left behind parent who never abandoned the fight to regain their children no matter what the odds were.
DISCLAIMER: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific or legal advice on the information provided and related topics, please contact the author.
Gabriel Sawma is a lawyer with Middle East Background, and a recognized authority on Islamic law of marriage, divorce, and custody of children, Professor of Middle East Constitutional Law and Islamic Sharia (law), and Expert Consultant on Islamic divorce in U.S. Courts. Admitted to the Lebanese Bar Association. Former Associate Member of the New York State Bar Association, and former Associate Member of the American Bar Association.
Professor Sawma lectured at the American Academy of Matrimonial Lawyers (AAML) in New York State and universities in the U.S., Europe, and the Middle East. He wrote Affidavits and legal opinions to State Courts, Immigration authorities throughout the United States.
Travelled extensively to Saudi Arabia, the Arabian Gulf region, and other countries in the Middle East, and wrote numerous articles on Islamic divorce in USA and abroad.
Prof. Sawma speaks, reads and writes, Arabic, English, French and a few other Semitic languages spoken in the Middle East.
Interviewed by the following news organizations;
Professor of Islamic Finance at the University of Liverpool (2012)
Email: [email protected]
Email: [email protected]
Tel. (609) 915-2237