The Personal Status Law issued through royal decree No. M/73, dated 6/8/1443H is the first to be adopted out of the four new laws.
Dipali Maldonado,Senior Counsel,Private Client Services
Ali ZakariaSenior Associate,Private Client Services
Abdulaziz AlShahraniSenior Associate,Litigation
Hend Al MehairiAssociate,Litigation
As part of Vision 2030, the Kingdom of Saudi Arabia (“KSA”) announced four new laws to be adopted in February 2022, being the personal status law, the civil transactions law, the penal code and the law of evidence. This move towards a codified legal system is designed to enhance the efficiency, predictability, and integrity of the Kingdom’s judicial system.
The Personal Status Law issued through royal decree No. M/73, dated 6/8/1443H (“PSL”) is the first to be adopted out of the four new laws and came into force on 17 June 2022.The PSL seeks to establish gender equality in the sphere of family relations, removes the need for discretionary reasoning by judges, thereby reducing inconsistency, promotes transparency, enhances the quality of living in KSA, and protects human rights.
The PSL covers personal status issues, including, inter alia, marriage, divorce, separation, lineage, guardianship and custody of children, wills, inheritance, and trusteeship. It codifies the rights and duties of spouses vis a vis cohabitation, mutual respect, not doing harm to each other, protecting the family’s interests, and taking care of children.
When filing any claim before the Personal Status Court, the claim is automatically referred to a platform affiliated with the Ministry of Justice, called the “TARADHI” platform, where the court’s conciliators hold reconciliation sessions between the parties to the case prior to referring the matter to the judge. In the event reconciliation proves successful, the conciliation committee shall hand down a final enforceable reconciliation report to the parties and the Execution Court, which the parties are bound to comply with. Where reconciliation is not possible between the parties, the conciliator shall refer the case to the Personal Status Court for determination.
The PSL provides for the right of married women to receive alimony from their husbands, regardless of the women's economic circumstances. Such alimony covers housing, food, clothing, and other necessities of daily life. While in the past, the provisions for alimony were not well defined, nor was the extent to which a wealthy woman was entitled to receive it, leaving room for inconsistency and unpredictability; now this is no longer the case.
Further, the law granted women the right to marriage contracts under specific scenarios unilaterally. According to the PSL, it is prohibited to document a marriage contract for anyone younger than 18, regardless of gender. However, the court has the option to make exceptions for those whom it deems it is in their best interest to marry. The court has the right to marry a woman whose guardian refuses to allow her to marry and to transfer her guardianship to any other guardian, provided that the latter looks out for her best interests.
The legislation did not disregard the betrothal phase, which precedes marriage, during which gifts are typically exchanged between the engaged couples following societal norms. Numerous arguments existed regarding these gifts if the betrothal failed. The PSL has sought to alleviate this situation by providing for what happens in the event of disputes in the early stages of marriage and has authorized "refunding gifts and the dowry" in the event that the betrothal between the two parties fails. In particular, the PSL specifies explicit conditions for the recovery of gifts and permits compensation for damages if one of the parties abandons the betrothal.
The PSL clarifies the requirements and obligations as they relate to child custody in the event of a divorce between spouses and makes it clear that the mother is granted custody first, followed by the father, then the mother's mother.
Upon the child reaching the age of fifteen, he or she has the right to choose which parent should have custody of him. Once a child reaches the age of eighteen, he is no longer considered a "custodial" minor. As a result, legal custody of a child ends unless the judge orders to extend the custody period keeping in mind the best interest of the child at all times. In every circumstance, the court will award custody of the children to the parent the judge thinks is best able to provide for their needs, considering what is in the child's best interests.
Articles 136 to 168 of the PSL cover guardianship of minors and adults and grants the guardianship of the children to the father provided he fulfils specific criteria, including but not limited to honesty and capable of acting as a guardian and having the same religion as the child.
Another major development in the PSL can be found at articles 169 to 196 governing wills. Wills are defined as “an act in the form of donation which shall become effective only after the death of the testator”. It is to be noted that since the new law is aligned and based on Sharia principles, the will is limited to one third of the estate being granted by the testator to a person who is not an heir and codifying that the testator has the right to revoke or amend his will at any time during his lifetime.
If the legatee dies before accepting or rejecting the will, the right to take it or leave it shall be transferred to their heirs.
The Saudi legislator has established a specialized judicial circuit consisting of three judges in the Personal Status Court to hear cases of inheritances whose value exceeds fifty million riyals, unlike inheritances whose value is less than fifty million, which are considered by a single judicial circuit with a sole judge.
This came to the attention of the Saudi legislator in looking into the large heritages and maintaining the integrity of the procedures for their division and Al Tamimi & Company had first hand experience having represented heirs in the fourth case that came before the specialised judicial circuit since its inception.
Chapter seven of the PSL governs estate and inheritance, codifying the sharia principles of estate distribution between the heirs and limiting the shares in the estate to (two-thirds), (one-half), (one-quarter), (one-sixths), and (one-eighth).The shares are granted to two categories Cognates “dha-wul arham” and the Sharers “ashab al-furud”; even the missing person and the unborn child shares have been regulated by the law pursuant to which they are granted a right in the share of the deceased person if applicable.
Whilst it may take time to build a strong practice of precedents, to date, we have seen the PSL pave the way for greater consistency and swifter resolution of family disputes making it is a very positive step from the Kingdom’s leadership for the benefit of Saudi citizens, residents, and tourists.
For further information, please contact Dipali Maldonado, Ali Zakaria or Abdulaziz AlShahrani.
Published in November 2022
