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Saudi Arabia codifies male guardianship and gender discrimination

As the world gathers to mark 16 Days of Activism against Gender-Based Violence, Saudi Arabia’s continued imprisonment of women for their peaceful expression in support of women’s rights and imposition of travel bans against women human rights defenders are a crucial reminder of the inherently discriminatory systems women in the country face.

On International Women’s Day, on 8 March 2022, Saudi Arabia passed its first Personal Status Law (PSL). Previously, matters related to family life were subject to the discretionary application of the rules of Sharia (Islamic law) and interpretations of Islamic texts by a male dominated judiciary. At the time, Crown Prince Mohammed bin Salman praised the new law for its accordance “with the latest legal trends and modern international judicial practices”. In reality, however, the law codifies many of the informal yet widespread problematic practices inherent in the male guardianship system and entrenches a system of gender-based discrimination in most aspects of family life, including in marriage, divorce, and child custody.

Musawah, a global movement for equality and justice in the Muslim family, defines male guardianship, or wilayah, as “the right and duty of fathers or male family members to exercise guardianship over their dependent wards (female or male).”

Since 2019, Saudi Arabia has eliminated some of the restrictions imposed through the male guardianship system, allowing women aged over 21 years the right to obtain a passport and to travel without the permission of a male guardian and allowing women over 18 years to register the birth of a baby, the death of a relative as well as marriage and divorce. While these reforms have had a positive impact on women, the authorities’ failure to abolish the male guardianship system in its entirety and instead codifying it in law risk undermining these modest gains.

Under the PSL, the influence of the male guardian is pervasive throughout a woman’s life. Only men can be legal guardians, and unlike men, only women must have the consent of a male legal guardian to get married and for the marriage contract to be validated. The law does contain some safeguards which seek to protect a woman from being forced into marriage, such as proof of consent of both the man and woman and the prohibition of a legal guardian’s agreement to a woman’s marriage without her consent. However, it does not provide any clarity on what “consent” means or how it should be obtained.

Further, a woman cannot choose her legal guardian, as the law defines the order of male legal guardians for marriage by rank, beginning with the woman’s father, then his guardian, then the grandfather and so on. If a woman’s legal guardian rejects the marriage, despite giving her consent, that guardianship is transferred to the court, which is another male-dominated entity, to “take charge of marrying the woman.” This transfer of guardianship further diminishes women’s agency, increases men’s control over women, exacerbates the unequal power dynamics between them, and eliminates the possibility for women to give their “free and full” consent to marriage as required under international law.

Similarly, the PSL does not give women and men equal rights over matters relating to their children in the event of separation, in contravention of international law and standards. While the mother is automatically granted custody, the father is designated as the child’s legal guardian without due consideration of the best interests of the child.

As the legal guardian, the father possesses much more expansive powers with regards to the child’s upbringing than the mother. For example, the mother, i.e. the child’s custodian, is only allowed to travel outside Saudi Arabia with the child for a period of a maximum 90 days in a year; any travel exceeding this period requires consent of the father, as the legal guardian, or a person appointed by the father if the father is deceased. Not only does this requirement impose restrictions on women’s freedom of movement, it also prevents women from relocating outside of Saudi Arabia with their children, unless they have the express approval of the child’s father or the appointed legal guardian. By contrast, the PSL does not require consent from the child’s mother if the father or appointed legal guardian wants to relocate with the child.

Further, the grounds for termination of custodianship are much wider than grounds for terminating legal guardianship, creating the risk that fathers may use the broad powers of their legal guardianship to take away the limited rights that a woman has over her child. For example, under Article 126 (1), a legal guardian can terminate the mother’s custody if she marries a man unrelated to the child. This provision risks deterring divorced women with children from re-marrying as this would put them at risk of potentially losing their children unless they can prove that the marriage is in the “interest” of the child, which as stated above, is not defined in the law. By contrast, there is no similar provision under the PSL restricting a father’s guardianship over his child based on his marriage status.

The law also discriminates against women in matters of marriage by allowing a Muslim woman to only marry a Muslim man, but allowing a Muslim man to marry a Christian, Jewish or Muslim woman. Under international law, this differentiation impairs a woman’s right to freely choose her spouse. Additionally, the PSL codifies stereotypical gender roles which are discriminatory against women by requiring wives to “obey in righteousness” and cancelling a woman’s right under the law to financial maintenance by her husband if she “refuses herself to her husband…without a legitimate reason.” Here too, the PSL fails to provide a definition for a “legitimate reason.”

The Convention on the Elimination of Discrimination Against Women (CEDAW), which Saudi Arabia ratified in 2000, requires that state parties take all appropriate measures to eliminate discrimination against women in all matters relating to marriage and family relations and to ensure on the basis of equality that men and women have the same right to freely choose a spouse and to enter into marriage only with their free and full consent. The CEDAW Committee has also stated that a woman’s right to choose her spouse and enter into marriage freely is central to her life and dignity and equality as a human being. In light of this, in 2018 the CEDAW Committee called on Saudi Arabia to remove “discriminatory provisions regulating legal capacity, polygamy, divorce, the guardianship system and inheritance.”

Indeed, the essence of the male guardianship system is inherently discriminatory against women: it restricts the exercise of women’s human rights, and grants men wider powers over their children. Women’s rights in Saudi Arabia are still subject to the discretionary attitudes of men, and the new law further entrenches this. The Saudi authorities must act on their commitments and fully eliminate the male guardianship system.