Miércoles, 08 de marzo, 2023

Prior to the introduction of a codified Personal Status Law, matters related to family life were subject to the judges’ discretionary application of Islamic law

Saudi Arabia’s Personal Status Law (PSL), passed one year ago today on 8 March 2022 and touted as a major reform by the authorities, perpetuates the male guardianship system and codifies discrimination against women in most aspects of family life, Amnesty International said today, as the world marks International Women’s Day.

In a detailed analysis, Amnesty International found that while the law does introduce some positive reforms, such as setting a minimum age for marriage, it also codifies some of the practices inherent in the male guardianship system, fails to adequately protect women from domestic violence, and entrenches a system of gender-based discrimination in marriage, divorce, custody and inheritance.

“Although framed by Crown Prince Mohammad bin Salman as a step towards progress and equality, Saudi Arabia’s Personal Status Law fails to respect women’s agency in making crucial decisions about their lives and the lives of their children and perpetuates discrimination against them,” said Heba Morayef, Amnesty International’s Regional Director for the Middle East and North Africa.

“To achieve true progress, the Saudi authorities must uphold their obligations under international human rights law by urgently amending the Personal Status Law and repealing provisions that discriminate against women, including those related to the male guardianship system. They must also ensure that women have equal rights and responsibilities with regards to marriage, divorce, custody and guardianship over their children, and inheritance.”

The PSL was part of a package of legislative reforms announced by Mohammad bin Salman in February 2021 in order to “preserve rights, bolster the principles of justice, enforce transparency, protect human rights and achieve comprehensive and sustainable development.”

Prior to the introduction of a codified Personal Status Law, matters related to family life were subject to the judges’ discretionary application of Islamic law. The codification of a personal status law limits discretionary and inconsistent judicial rulings related to family matters. But Amnesty International’s analysis still found that the law leaves significant scope for judges to exercise their discretion.

Marital rights and domestic violence

The law fails to adequately protect women from domestic violence. Instead, the PSL entrenches patriarchal gender roles by expecting women to “obey” their husbands. It also makes women’s financial support from their husbands during marriage conditional on wives “submit[ing]” themselves to their husbands. Such provisions place women at risk of exploitation and abuse, including marital rape, which Saudi law does not criminalize.

Under the new law, women, unlike men, must have the consent of a male legal guardian to get married and for the marriage contract to be validated.

To achieve true progress, the Saudi authorities must uphold their obligations under international human rights law…

Heba Morayef, Amnesty International

Although the law sets the legal age for marriage at 18, it allows the courts to permit marriages for boys and girls aged under 18 in certain cases. The Ministry of Justice published draft implementing regulations in April 2022 outlining the conditions under which children under 18 can get married. However, those regulations have not yet been formally adopted, so it is still unclear how the courts will decide on marriages for those under the age of eighteen.

Barriers to divorce, unfair financial burdens

According to the PSL, only men have the unconditional right to initiate a divorce. The law merely stipulates that a woman should be “informed” of the divorce and entitled to financial compensation if she has not been informed. Conversely, women do not have the right to unilaterally end a marriage.

In all cases of marriage dissolution, the PSL disadvantages women economically. In the cases of khula’ (separation) and faskh (an annulment of marriage pronounced by a court), in which women are able to initiate the dissolution of a marriage, they face legal, financial and practical barriers that are codified in the PSL and that only apply to women.

Khula’ may be initiated at the wife’s request, but it requires the husband’s consent and can only be granted if the wife repays her mahr (dowry).

A woman may also obtain a faskh, but this option is only available in a limited set of circumstances, including illness, the husband’s failure to pay the mahr, the husband’s refusal or inability to provide financial maintenance, or mistreatment of the wife “where the harm is proven.” Even in the case of a wife being mistreated by her husband, the burden is on her to prove the harm, and the law may require the couple to go through an adjudication process that can last up to two years. Such provisions, which create additional barriers to ending a marriage, prioritize the reconciliation of the family over the woman’s safety.

Moreover, in the event of a separation, a mother does not enjoy equal rights with the father in matters related to their children, according to the PSL. Although the mother is automatically granted custody, the father remains the child’s legal guardian and has the power to make critical decisions regarding the child’s life. The law also makes it difficult for divorced mothers to travel with their children, relocate overseas or remarry.

The PSL also discriminates against women with regard to inheritance by giving men a much larger share of assets than women, which further entrenches economic discrimination based on gender.

“Given the prevalence of patriarchal gender roles in Saudi Arabia and the fact that women are usually financially dependent on their husbands, women are economically vulnerable at the end of a marriage due to these unfair financial arrangements,” said Heba Morayef.

Reform amid clampdown on freedom of expression

For years, the Saudi authorities have arrested, imprisoned and sentenced brave Saudi women’s rights activists who campaigned for the end of the male guardianship system. Even those released after several years of imprisonment, today face travel bans and restrictions on their freedom of expression.

Human rights activists told Amnesty International that these activists who were at the forefront of calls for women’s rights were not given the opportunity to provide any input into the law. Women who face challenges in relation to marriage, divorce and child custody under the PSL are unable to speak freely about their concerns for fear of repression by the authorities.

On March 8, Amnesty International released a joint statement with Human Rights Watch and other organizations, which calls on the Saudi authorities to take further steps to end discrimination against women and fully dismantle the male guardianship system.