When parents divorce, a child’s welfare comes first
When a marriage ends in divorce, it can be particularly upsetting for the couple’s children — whether because of instability in their circumstances, or because of disputes between their parents over custody or alimony.
In the matter of custody, Islam ensures the right to human dignity, and insists that the interests of the child take priority, without hesitation or negotiation.
The Saudi judiciary, therefore, treats custody cases and disputes with great sensitivity and caution.
The aim is to settle any dispute over custody in as amicable manner as possible, and for the courtroom to be a last resort. It is also important to clarify that custody provisions apply only to children and people with disabilities, not to adults.
The default position in Shariah, which is the first and main reference for personal status issues in Saudi law, is that custody of a child resides with the mother.
There are, however, circumstances in which that does not apply — for example, when a guardian is physically, mentally or psychologically unable to raise the child, or has been sentenced by a court for conduct that violates honor or honesty. There may be other reasons for one parent to argue that the other is unsuitable to take custody of the child, which must be legally proved by the other party, most notably through acknowledgment, witnesses or documents.
The competent authority to hear cases related to marriage, divorce, custody, alimony and all personal matters is the personal status court. After a custody case has been filed through the website of the Ministry of Justice, the applicant will be given a reference number to visit the personal status court for a decision on the date of the first hearing. A mother may file the lawsuit in her own town, regardless of where her husband lives. In appreciation of the sensitivity of family cases, the procedures are more speedy than in other courts.
One common misapprehension is that an adult girl is required to live with her father. That is untrue — she will be given a choice by the court to decide on that matter for herself.
It is true to say that there is sometimes a lack of clarity as to the rights of family members, and that some judgments appear arbitrary and based on personal discretion. The establishment of a specialized, Shariah-based law that focused on personal status would address these issues. Until such a law exists, it is important to educate the community about their family rights both before and after a divorce, guaranteed by Islam first and then by Saudi law.
Dimah Talal Alsharif is a Saudi legal consultant, head of the health law department at the law firm of Majed Garoub and a member of the International Association of Lawyers. Twitter: @dimah_alsharif