1 Introduction
On March 8, 2022, International Women’s Day, Saudi Crown Prince Muhammad bin Salman announced that a codification of Islamic family law had been approved by the Council of Ministers and would be enacted in ninety days. The new personal status law (Niẓām al-Aḥwāl al-Shakhṣiyya, PSL), the prince stated, represented a “quantum leap” (naqla nawʿiyya kubrā) for the Saudi judiciary.1
Saudi government officials praised the codification as a significant reform of Islamic family law, highlighting that it ensures the “protection” (ḥifāz) of the rights of Saudi women, children, and the family more generally. Moreover, the new law, they said, safeguards human rights (ḥuqūq al-insān). Yet, at the same time, government officials emphasized that the codification does not deviate from Islamic law. Instead, the government chose those opinions (aqwāl, sing. qawl) from the Islamic legal tradition that were believed to best fit the current social and economic situation in the kingdom. The Minister of Justice at the time, Walīd al-Samaʿānī, emphasized that the new law was based on the principles of jurisprudence (maqāṣid al-sharīʿa) and incorporated the best modern judicial practices and teachings while acknowledging the changes and challenges of modernity.2
Although Saudi government officials and many commentators outside Saudi Arabia regarded the new code as the start of a new era of law in Saudi Arabia, it generated little visible interest within the Saudi legal community. The scholarly establishment largely remained silent, and commentators on Twitter only vaguely criticized some aspects of the new law. The lack of criticism was not surprising, given the current state of freedom of speech in the kingdom. Nevertheless, it was noteworthy that scholarly institutions, such as the Council of Senior Scholars, which seldom miss an opportunity to formally praise the Saudi leadership, refrained from commenting on the law. Those jurists who commented on the law remained very brief. For instance, Saʿūd bin ʿAbd Allāh al-Muʿjab, the general prosecutor of Saudi Arabia and a member of the Council of Senior Scholars, released a short statement praising the Saudi leadership and merely superficially pointing to the alleged benefits of the new law.3
This chapter explores whether the codification constitutes a departure from the way Islamic family law was conceptualized and applied in the kingdom before the new law was issued. To do this, it analyzes (1) how the codification of family law came into being and (2) how it relates to the writings of Saudi jurists and court practice before the codification.
2 How the New Code Came into Being
The new code law put an end to the almost 100-year-long debate in the kingdom on the codification of Islamic law, during which several attempts had been made to codify the law. In the early twentieth century, King ʿAbd al-ʿAzīz planned to establish a committee of religious scholars, which should choose rulings from all four schools of Islamic jurisprudence and publish them in the form of a modern law code. Since the nineteenth century, Islamic scholars outside Saudi Arabia had been publishing compilations of Islamic law, which were mostly called majallāt (sing. majalla). The most important compilation was the Ottoman majalla (Majallat al-aḥkām al-ʿadliyya), which was published and enforced in most parts of the Ottoman empire between 1870 and 1877.4 It was a remarkable effort to transform late Ḥanafī doctrine into a systematic and comprehensive law code.5
The idea of a systematic codification was not new to Ottoman jurists, since European-style codes had already been introduced in some areas of the law. The majalla, however, was the first effort to codify the core of Islamic private law. Family law was left out, but soon other compilations were created to fill that void. Most importantly, it was the work of the Egyptian jurist Qadrī Bāshā, who compiled Ḥanafī family law. Qadrī Bāshā’s work never had any binding effect but served as the primary source for the 1917 Ottoman family code.6
In Saudi Arabia, King ʿAbd al-ʿAzīz’s plan to create a compilation of Islamic law failed, apparently due to the complexity of the project.7 After the king’s efforts proved unsuccessful, Saudi judge Aḥmad al-Qārī decided to continue the king’s project and started to work on a compilation of Islamic law in 1925. Instead of incorporating other schools of Islamic jurisprudence, as imagined by King ʿAbd al-ʿAzīz, al-Qārī decided to limit the compilation to those Ḥanbalī books that were mentioned in the 1928 decree of the Higher Judicial Authority.8 Al-Qārī died before he could finish the compilation, but his work was later finished by two other scholars, ʿAbd al-Wahhāb Abū Sulaymān and Aḥmad Ibrāhīm ʿAlī.9 They published al-Qārī’s extensive compilation of the rulings of the Ḥanbalī School in 1927. Although al-Qārī’s compilation never had any binding effect, it is still popular among Saudi judges and lawyers as an introduction to Ḥanbalī law due to its easy accessibility.
Inspired by the spread of comprehensive codifications in the region, more and more Saudis demanded a binding law code in the subsequent decades. The debate reached its peak when the Council of Senior Scholars discussed and finally refused any form of binding law in 2000.10 King Fahd had turned to the Council in order to legitimize his plan to codify Islamic law. However, the decision of the Council was by no means unanimous. In several statements, six of the Council’s twenty-one scholars supported the king’s plan. Among them were such influential figures as Rāshid bin Khunayn, a relative of ʿAbd Allāh bin Khunayn, and Ṣāliḥ bin Ghaṣūn. Interestingly, the vast majority of the dissenters had worked in the judiciary before they became members of the Council.11 Whereas the Council’s final decision did not refer to fiqh literature, many of the dissenters built their case on the writings of various premodern and contemporary jurists.12
As a result of the Council’s decision, King Fahd refrained from codifying Islamic law.13 In the early 2010s, the discussion on codification again intensified. Around the year 2012, rumors spread that the Council of Senior Scholars had released a new decision on the possibility of codification.14 However, according to Ibn Khunayn, who at the time was a member of the Council, the senior scholars did not release a second decision.15
Despite the refusal of a binding codification of Islamic law by the Council of Senior Scholars, King ʿAbd Allah formed a committee of Saudi jurists in 2010 which was tasked with developing a compilation (tadwīn) of Islamic law. By 2018, a compilation of the major areas of civil and criminal law had been completed and was in the editing process but not announced publicly. The compilation was meant to be binding for the judges.16 The jurists of the drafting committee had continued from where past efforts to codify and systematize Islamic law in Saudi Arabia had stopped: In commercial matters, they based their code mainly on Aḥmad al-Qārī’s compilation of Ḥanbalī law. In family, inheritance, and criminal law, they aimed to codify the prevailing practice.17
However, in February 2021, the Crown Prince refused the committee’s proposition. The code did not satisfy the needs of the Saudi people, Muhammad bin Salman announced. Instead, he promised that family, private, and criminal law codes would be issued by the end of the same year.18 The new codes should be “modern” codifications, which include “international modern court practices” (mumārasāt al-qaḍāʾiyya al-dawliyya al-ḥadītha).19 Of course, the king added, the code could not violate the fundamentals of Islamic law but remained silent on the details. A bit more than a year later, the PSL was issued as the first of the announced codifications of Islamic law in Saudi Arabia.20
Very little is known about the law-making process. Before the PSL was issued, a draft law (Mashrūʿ Niẓām al-Aḥwāl al-Shakhṣiyya) was promulgated, but no details on the sources used or people involved were published. As we will see, the enacted PSL largely followed the draft but deviated from it in important aspects.
3 Is There Anything New in the 2022 Family Code?
3.1 The Ministry of Justice’s Claims
Shortly after the new code was issued, the Ministry of Justice and other government officials highlighted what they saw as its major accomplishments.21 Among them were several improvements in procedural matters. It is now mandatory to register divorce (ṭalāq), reconciliation after a divorce (rajaʿa), and other changes in a person’s personal status. The new law also allows women to register their divorce, which is of high practical importance.
But the Ministry highlighted that the law also introduced new rulings in a range of legal questions. In the following, I will investigate the most commonly made claims to analyse to what extent they deviate from Saudi court practice before codification.22 Surprisingly, Saudi officials did not mention inheritance law in their announcements of the new law, which makes up a large part of the PSL. Instead, they focused on marriage, divorce, and child custody.
The most widespread claims were the introduction of (1) a minimum age of marriage, (2) new ways to prove paternity, (3) a new ruling on the triple ṭalāq, (4) improvements of the rights of children in custody law, and (5) women’s right to divorce on their own will in some instances. We have already touched on several of these issues in earlier chapters, which is not surprising given that they are among the most contentious issues in Islamic family law today.
3.2 The Introduction of a Minimum Age of Marriage
In general, Islamic jurisprudence does not specify a minimum age of marriage. According to the four major schools, a girl and a boy can be married well before puberty. However, this does not imply that sexual intercourse is permitted. The marriage is only consummated once the wife has been handed over to her husband following the marriage ceremony, which typically occurs after she has reached puberty.23
Saudi scholars have long permitted minor marriage. When asked about the marriage between a 14-year-old boy and a girl aged 10 to 14, the Permanent Committee responded that such a marriage was valid if the marriage guardians agreed.24 In another fatwa, the Committee stated that there was no reason why a marriage of a 12-year-old child should be prohibited.25 Referring to plans to institute a minimum age of marriage in the Emirates, Ibn Bāz condemned any restrictions on marriages of children under the age of 18, emphasizing that there would not be any age limit for marriage in Islamic law. He wrote that “nobody can legislate (sharaʿ) contrary to what God and the Prophet have legislated” and reminded the Emirati legislators of their obligation to adhere to Islamic law.26
The Saudi government and the Saudi Human Rights Organisation (Hayʾat Ḥuqūq al-Insān) have worked for decades towards the prohibition of minor marriages.27 Plans to introduce a minimum age of marriage were presented by the Ministry of Justice around 2009. The plans faced severe criticism from leading Saudi ʿulamāʾ. ʿAbd al-Raḥmān bin Nāṣir al-Barrāk, a former professor at Riyadh’s Imām University, strongly urged the Saudi government to reconsider its plans, since Islamic law did not allow, he said, for such a restriction. Social problems caused by minor marriages, he argued, should be addressed through Islamic law rather than through the introduction of positive law (qānūn waḍʿī).28 ʿAbd al-Muḥsin bin Ḥamd al-ʿAbād, a professor at Medina University, emphasised that not only were minor marriages permitted but there were also no restrictions on the age gap between the spouses.29 He mentioned Muḥammad bin Ibrāhīm, who allegedly married two minor girls when he was old, although al-ʿAbād did not specify their exact age. Because Islamic law did not set a minimum age of marriage, al-ʿAbād held that no one would be allowed to pass any legislation that forbids minor marriage.30 Ṣāliḥ bin Fawzān al-Fawzān even accused journalists who advocated for a minimum age of marriage of being either ignorant of the rulings of Islamic law or of opposing them.31
Other Saudi scholars are more critical of minor marriage and, more specifically, of the marriage of prepubescent children. Those jurists point to the views of some early scholars, such as Ibn Shubrama (d. 761), who held that minors should not be married at all. According to Ḥātim bin ʿĀrif al-ʿAwnī, a lecturer at Mecca’s Umm al-Qurā university, the early jurists’ opinions demonstrated that there is no consensus (ijmāʿ) in Islamic jurisprudence on minor marriage. In a fatwa, al-ʿAwnī referred to the debate on “triple ṭalāq,” which will be discussed later in this chapter, where some scholars falsely assumed a consensus and thereby ignored Ibn Taymiyya’s important minority opinion. Al-ʿAwnī argued that even if there was a consensus in Islamic jurisprudence that allowed the marriage of minors, this would not necessarily mean that instituting a minimum age of marriage was in conflict with Islamic law. In other questions, Saudi ʿulamāʾ (he explicitly addressed Ṣāliḥ bin Fawzān al-Fawzān) would have used the concept of “blocking the means” (sadd al-dharāiʿ) to declare an otherwise permissible action forbidden in order to prevent unlawful or undesirable actions from taking place.32 The same, al-ʿAwnī asserted, could be argued in the case of the introduction of a minimum age of marriage.33
The most prominent Saudi scholar to advocate for restrictions on minor marriage was Ibn ʿUthaymīn. He argued that although a boy could be married off before puberty by his father, a girl could only be married in extraordinary cases when the marriage was in her best interest. In his Al-Sharḥ al-mumtiʿ, Ibn ʿUthaymīn wrote,
Some ʿulamāʾ, however, state that there is consensus that he can marry her off, relying on the ḥadīth of ʿĀʾisha, and I have stated the difference. Ibn Shubrama, [one] of the renown jurists, said: He can never marry off a girl that has not reached puberty. Because if we say that consent is a requirement [for marriage], then her consent cannot be considered. [If] we say that a pubescent girl cannot be forced, then this is even more so. And this is the correct opinion. The father cannot marry off his daughter until she reaches puberty. If she reaches puberty, he can only marry her off if she agrees.
But if we assume that the father is of the opinion that the groom is equal (kufʾ), and he [himself] is old, and fears that if he dies, the girl will find herself under the guardianship of her brothers, who abuse her and marry her off at their convenience, this is not in her best interests. If he sees that it is in the girl’s interest that he marries her off to an equal [groom], he can do this without a doubt. However, she can choose when she grows up. If she wishes, she can say: I do not want this and I do not need it.34
Other Saudi scholars argue that, while minor marriages were not prohibited, the Saudi government could restrict them. Ṣāliḥ bin ʿAwād al-Maghāmsī, for example, a popular scholar and imam, argued that the introduction of a minimum age of marriage was a question of siyāsa sharʿiyya. As a result, the Saudi king could impose restrictions if he considered this to be in the public benefit, most importantly by prohibiting the registration of such marriages. However, the king could not declare minor marriages to be void.35
In December 2019, the Ministry of Justice sent a circular to the courts. It prohibited the registration of a marriage in which one of the spouses was under eighteen. The ministry had issued implementing regulations for the Child Protection Law (Niẓām Ḥimāyat al-Ṭifl), according to which it must be assured that the marriage of a person under eighteen, whether male or female, does not lead to any damages and is in the minor’s best interests. Referring to the Child Protection Law, the Ministry wrote to the courts,
In response, there have been inquiries regarding the marriages of persons under the age of eighteen. For this, we want to inform the assistants (maʾdhūnūn) allocated to the courts to not register any marriages of persons who are under the age of eighteen and to refer those who reject this to the competent court to execute what appears in the abovementioned paragraph and to dismiss those assistants who do not comply with this.36
The PSL builds on the Ministry’s directive and the Child Protection Law. Article 9 of the PSL stipulates,
The registration of a marriage contracted by a person under the age of eighteen is prohibited. The court allows such a minor, male or female, to marry if he or she is of age, and it has been determined that the marriage is in his or her best interests. The [implementing] regulations to this law determine the requirements and the necessary procedure.
Hence, the PSL does not completely forbid underage marriage. Children under eighteen can still marry with the permission of the court. Moreover, the new law does not state that underage marriages cannot be contracted, since it only prohibits the registration of such a marriage. In Saudi Arabia, as in most other Arab countries,37 a marriage can be contracted without the involvement of state institutions. This type of marriage is usually called customary marriage (zawāj ʿurfī). In theory, customary marriages entail the same legal effects as officially registered marriages. Because the conclusion of underage marriages as such is not illegal, minors can marry early and register their marriage later.38
3.3 New Technologies to Establish Paternity
Paternity (nasab) plays a key role in Saudi society.39 As Sebastian Maisel has pointed out, “the large majority of Saudi citizens define their identity first by bloodlines and then geographically.”40 Despite the government’s efforts to foster a national Saudi identity, such as through the celebration of the national day (yawm al-waṭan), the importance of tribal affiliation appears to have increased in recent decades. Navid Samin has documented the growing interest among Saudis in their family histories, primarily to confirm their tribal affiliation. Thousands of books and articles have been published to trace a particular family’s ancestry.41
Paternity refers to the male bloodline, which is evident in the Saudi naming system that includes the father’s and grandfather’s names. As we will discuss later in this chapter, paternity also plays a crucial role in determining marriage equality (kafāʾa), which limits a woman’s freedom to choose her spouse. Paternity is first and foremost established through a valid marriage. If a child is born into a valid marriage, the child is automatically attributed to the mother’s husband, even if another man is the child’s biological father. This is based on an account of the Prophet Muḥammad according to which a child is attributed to the marital bed (firāsh).42 Children who do not have a legally recognized father often face discrimination. As a result, Saudi ʿulamāʾ are traditionally cautious about denying a child paternity.43
In the past, one way in which children born out of wedlock were attributed to a legal father was the assumption in premodern Islamic jurisprudence that women could be pregnant for several years. According to the Ḥanafīs, a pregnancy could last up to two years.44 The Shāfiʿīs45 and Ḥanbalīs46 set the maximum length of pregnancy to four years, and Mālik, the founder of the eponymous school, even held that women could be pregnant for up to five years.47 The Ẓāhirī jurist Ibn Ḥazm, on the other hand, criticized his contemporaries for believing rumors rather than facts and set one year as the maximum length of pregnancy. The jurists’ rulings, however, allowed children born from extramarital relationships to claim paternity to either their mother’s divorced or deceased husband.
With the advent of modern medicine, the extensive lengths of pregnancy assumed in premodern Islamic jurisprudence were abolished in the Arab world and one year was widely accepted as the maximum length of pregnancy. Saudi Arabia was long an exception: several of the prominent twentieth-century Saudi jurists held that the maximum length of pregnancy could, in rare cases, far exceed nine months. Ṣāliḥ bin Fawzān al-Fawzān, for example, followed the traditional Ḥanbalī opinion and maintained that women could be pregnant for up to four years.48 Ibn ʿUthaymīn even claimed that no maximum length of pregnancy could be determined:
A child born more than four years [after the death of the testator] does categorically not inherit according to the [Ḥanbalī] school as four years is the maximum length of pregnancy. [But] the correct [opinion] is that it inherits if no sexual intercourse has taken place after the death of the testator, because the time of pregnancy can exceed four years, as it happens.49
Similarly, Muḥammad bin Ibrāhīm assumed that pregnancies could last longer than the four years maximum established in the Ḥanbalī school. He argued that no time limit could be set because justice must be upheld even in rare cases when women would be pregnant for more than nine months. Muḥammad bin Ibrāhīm cited Ibn al-Qayyim, who observed a case where a pregnancy lasted fourteen years and the child was born with all its teeth.50
Saudi courts have in the past assumed pregnancy lengths that contradict modern medicine. In 2009, Saudi jurist ʿAbd al-ʿAzīz al-Ghāmdī reported that there was still uncertainty among Saudi judges about the maximum length of pregnancy.51 A year earlier, in 2008, a judge in Mecca attributed a boy that was born nearly two and a half years after the mother’s husband had died to the deceased. He contended that the time between the death of the mother’s husband and the birth of the boy did not exceed the maximum length of pregnancy in Islamic jurisprudence.52 The PSL diverged from the Saudi jurists’ ruling by introducing a maximum pregnancy length of ten months, from which the court may only deviate based on a medical report. Article 68, paragraph 2 states,
The maximum length of pregnancy is ten months. The court may decide differently based on a recognized medical report.
While the PSL aligns Islamic law with modern medicine, it deprives some children who would otherwise be considered born out of wedlock from claiming paternity. However, several judges confirmed to me that cases involving the maximum length of paternity were rare. When no financial rights were claimed, Saudi courts usually did not hear paternity disputes.53
The introduction of a maximum length of pregnancy is one way in which the orientation towards modern medicine affects children born out of wedlock. Another, and perhaps more important, development is the introduction of DNA testing. Saudi jurists long had a critical stance towards the use of DNA tests in paternity cases. They were concerned that DNA tests would call established family relationships into question, creating conflicts and unrest. As a result, DNA tests were generally not permitted to prove paternity prior to the PSL.
If the mother was married, her marriage was a more significant factor for determining paternity than a DNA test revealing that the mother’s husband was not the biological father.54 In case the mother was unmarried, the four major schools of Islamic jurisprudence agree that the child cannot be attributed to the biological father, even if the biological father acknowledges paternity. Important Saudi scholars, including the Permanent Committee55 and the former Grand Muftis Muḥammad bin Ibrāhīm56 and Ibn Bāz57 shared the opinion that a child born out of wedlock can under no circumstances have a legal father.
Other Saudi scholars refer to Ibn Taymiyya and his disciple Ibn al-Qayyim. Both held that a child born out of wedlock can be attributed to the biological father, despite the prophetic account according to which a child can only be attributed to the marital bed.58 The two scholars argued that the Prophet’s statement only applied if the mother was married. If the parents were unmarried, no specification could be found in the revelation, and thus, there was no reason to deny the child legitimate descent. Furthermore, they pointed to an account according to which ʿUmar bin al-Khaṭṭāb attributed a child born out of wedlock to its biological father.59
In 2001, the appellate court in Riyadh ruled that a child born out of wedlock could not claim paternity from its biological father, referring to the majority opinion in Islamic law.60 Twelve years later, in 2013, the Saudi High Court decided that, although children resulting from unlawful intercourse could not be attributed to the “fornicator” (zānī), children conceived before the parents were married could be attributed to the husband at the judge’s discretion. However, the judge would have to consider the specifics of the individual case in order to do so.61
Due to the great stigma in Saudi society surrounding extramarital relationships, there are few court cases and even fewer published decisions involving children born out of wedlock. A high-ranking judge at the Riyadh Court of Appeal assured me that judges allowed a child born out of wedlock to claim paternity from its biological father, thereby following Ibn Taymiyya’s and Ibn al-Qayyim’s opinion. The judge explained that otherwise, the child would face serious difficulties through no fault of its own. The Saudi judiciary, however, did not make this public to maintain public morality.
The PSL now allows for DNA testing in cases involving the paternity of a child born out of wedlock. If a DNA test reveals that the father and child are biologically related, the child can be attributed to the father regardless of whether it was born as a result of unlawful sexual intercourse. Article 60 stipulates,
In exceptional cases or if the paternity of the child is disputed or on the basis of a request from a competent body, the court decides to have a DNA test carried out. This is done on the basis of principles drawn up for this purpose. The court must rule on the basis of the final results of the DNA test. The court only decides [on the DNA test] if the following is fulfilled:
the child is of unknown descent
the age difference is such that paternity of the child is possible.
The PSL thus represents a shift from a social definition of paternity to a biological one, while also continuing the liberal stance towards children born out of wedlock advocated by Ibn Taymiyya and Ibn al-Qayyim.
3.4 The Debate on “Triple Ṭalāq”
Another new feature of the law, at least according to Saudi officials, is its ruling on the question of three divorce (ṭalāq) utterings in a close temporal context, a legal problem often referred to as “triple ṭalāq.” The question of triple ṭalāq is one of the most disputed issues in Islamic legal history.62 According to Islamic jurisprudence, a man can only pronounce ṭalāq to his wife three times in his lifetime; otherwise, the marriage is permanently divorced, and reconciliation is impossible. Whereas after the first and second ṭalāq, the husband can take the wife back during the waiting period (ʿidda) following the ṭalāq or marry her again (after the waiting period has expired), this is prohibited after the pronouncement of the third ṭalāq. The divorce then becomes irrevocable (baynūna kubrā). The only way to overcome the marriage prohibition is for the woman to marry another man, consummate the marriage, and then obtain a divorce. Scholars and laymen alike have sought ways to circumvent this strict rule throughout Islamic legal history. In particular, attempts have been made to soften the requirement that the marriage must be consummated with a third party.63
According to the unanimous view of the four major schools of jurisprudence, the three ṭalāq utterings do not need to be made separately in time to be effective. The divorce also becomes irrevocable if the ṭalāq utterings occur at one concurrence (majlis), that is, in a close temporal connection. It also makes no difference whether the triple ṭalāq is pronounced in a single sentence (anti ṭāliq thalāthan; “you are divorced three times”) or three times in a row (anti ṭāliq, anti ṭāliq, anti ṭāliq; “you are divorced, you are divorced, you are divorced”).64 In practice, this means that a single emotional dispute can be the end of an otherwise happy marriage.
Ibn Taymiyya opposed the strict rule and recognized the triple ṭalāq as a single ṭalāq.65 Like scholars before him, Ibn Taymiyya believed that the triple ṭalāq constitutes a sin.66 However, he cited several accounts to show that during the time of the Prophet and the first Muslims, the triple ṭalāq was considered merely one divorce uttering.67 Contemporaries of Ibn Taymiyya were highly critical of his opinion. Reportedly, his stance on the triple ṭalāq even led to his imprisonment in the citadel in Damascus.68
Ibn Taymiyya’s opinion had a significant influence on Saudi ʿulamāʾ, but there was longstanding disagreement about it among them. In one letter, Muḥammad bin Ibrāhīm wrote that the practice in Saudi courts was to count each utterance as a separate ṭalāq.69 In a subsequent letter, he criticized a judge at the court in Mecca for stating that three ṭalāq utterances should be counted as a single ṭalāq.70 Later, the Council of Senior Scholars also issued a ruling in which the Council’s jurists followed the majority opinion.71
Other Saudi scholars were sceptical of the majority view in Islamic jurisprudence. Ibn Bāz, for example, distinguished based on the man’s intention. Did he really want to pronounce the ṭalāq three times, or had he only uttered the divorce several times when in fact he only wanted a single ṭalāq? Ibn Bāz argued that if the husband pronounced the divorce three times in a row, this should be seen as an irrevocable divorce, but the triple ṭalāq in one expression (anti ṭāliq thalāthan) should be considered a single ṭalāq. Thereby, Ibn Bāz followed Ibn Taymiyya’s minority opinion with qualifications. Frank Vogel reports a court case from 1983 in which a couple, after the husband had pronounced the ṭalāq three times in one sentence, sought to prevent a final divorce. The couple first obtained a fatwa from Ibn Bāz and later went to court. In his decision, the judge followed Ibn Bāz’s fatwa. He told Vogel that if the couple had come directly to him, he would have been obliged to follow the majority view.72
Ibn ʿUthaymīn, on the other hand, closely adhered to Ibn Taymiyya, leading to a conflict between him and Ibn Bāz. In a letter to Ibn ʿUthaymīn, Ibn Bāz urged him to depart from his opinion.73 Ibn Bāz, who was already Grand Mufti at this time, had received a court decision from the court in Dammam.74 A man had pronounced his pregnant wife three consecutive ṭalāq (hiya ṭāliq, hiya ṭāliq, hiya ṭāliq). In his decision, the judge referred to Ibn ʿUthaymīn and allowed the man to return to his wife. Ibn Bāz sharply criticized this, stating that Ibn Taymiyya’s opinion, which Ibn ʿUthaymīn had invoked, was incorrect because it contradicted the sources (adilla) of Islamic law. It was, he said, no secret that Ibn Taymiyya, like any other scholar, could be mistaken. Ibn Bāz called on Ibn ʿUthaymīn to correct the judge.75 This direct criticism of Ibn Taymiyya is noteworthy, given his otherwise strong influence on Saudi scholars.
Before the PSL, large segments of the judiciary still followed the majority opinion.76 However, the court cases published by the Ministry of Justice contain numerous rulings in which judges applied Ibn Taymiyya’s opinion.77 In 2013, for example, the appellate court in Mecca upheld the decision of a judge from al-Muwayḥ, a small town between Riyadh and Mecca. The judge quoted Ibn Taymiyya extensively in his ruling and decided that a ṭalāq uttered three times in a row should only be counted as one ṭalāq.78 The PSL also follows Ibn Taymiyya’s opinion. Article 83 of the law states,
A ṭalāq that consists of more than one expression or sign and occurs in a [single] meeting [majlis] shall be considered a singular ṭalāq.
Article 83 thus did not introduce a new ruling but rather codified an opinion that was already widely held in the Saudi legal discourse. Moreover, from a comparative perspective, the article is not exceptional: since the beginning of the twentieth century, reforms in the vast majority of Islamic countries have moved away from the majority view on triple ṭalāq.79 Egypt was the first to introduce Ibn Taymiyya’s opinion by law in 1929. The majority opinion was perceived as unjust for women because the man could arbitrarily end the marriage permanently without an opportunity for reconciliation.80
3.5 A Woman’s Right to Separate according to Her Own Will
In several of its announcements, the Ministry of Justice emphasized that the new law grants women the right to end (faskh) their marriages according to their own will in “a number of circumstances” (al-ʿadīd min al-ḥalāt).
As we have seen in the previous chapter, a woman can, at least according to the major schools of jurisprudence, only end a marriage against her husband’s will if she suffers any kind of damage (ḍarar) from the marriage. The PSL specifies four grounds for a woman to end her marriage due to damages caused by the husband. First, if the husband refuses or is unable to pay her maintenance (Article 107). Second, if she can prove that her husband causes her harm, making a normal life with him impossible (Article 108). Third, if her husband declares that they have not had intercourse for more than four months or refuses to have intercourse (Article 113). Fourth, if the husband has been absent for more than four months for reasons unrelated to his work (Article 114), or fifth, if the husband is missing or his whereabouts are unknown (Article 115). These grounds for divorce are largely in line with Mālikī doctrine, which, when compared to the other schools of jurisprudence, has the broadest understanding of damage, and is followed by most other Arab family law codifications.
But what happens if the husband cannot be accused of any wrongdoing and refuses the divorce? In this scenario, the only way for the wife to obtain a divorce is through forced khulʿ, as discussed in the previous chapter. Initially, the draft law adopted the Saudi ʿulamāʾ’s opinion and permitted forced khulʿ. Forced khulʿ was addressed within the draft law in the section “Dissolution of Marriage” (faskh81 ʿaqd al-zawāj). Article 125, paragraph 1 of the draft law stipulated,
The court shall dissolve the marriage if the wife so requests, the husband refuses her a divorce [ṭalāq] or a [extrajudicial] khulʿ [mukhālaʿa], she detests living together [with the husband], she returns what she has received as a dowry [mahr], and reconciliation between the wife and the husband is impossible.
However, in the final version of the PSL, this provision was limited to marriages that have not yet been consummated. Article 112, paragraph 2 of the PSL states,
The court shall dissolve the marriage before consummation [dukhūl] or the meeting in private [khilwa] if the wife so requests, the husband refuses her a divorce [ṭalāq] or a [extrajudicial] khulʿ [mukhālaʿa], she returns what she has received as dowry, and reconciliation between them is impossible.
For already consummated marriages, the PSL’s provisions on arbitration in the event of a rift (shiqāq) apply.82 As we have discussed in Chapter 6, the spouses each elect arbitrators (ḥakamān)83 during the shiqāq procedure, who are family members or professional family counsellors. The arbitrators are tasked with investigating the reasons for the discord and mediating between the spouses.84 If they do not succeed, the arbitrators agree to dissolve the marriage and determine whether and to what extent the wife must return assets to the husband.85
However, what happens if the arbitrators are unable to reach an agreement on the separation, as it is frequently the case in practice? The PSL provides no clear answer.86 It is also unclear whether the spouses are bound by the arbitrator’s decision. Therefore, it remains to be seen whether the judges will continue the prevailing practice at the courts and allow women to obtain a divorce against their husband’s will, or whether the PSL is in fact a step backwards with regard to women’s divorce rights in Saudi Arabia.
3.6 The Rights of Children and the Best Interests of the Child
Another key aspect of the new law, Saudi government officials claimed, was the protection of children’s rights and the consideration of their best interests in custody cases. As discussed in Chapter 5, the question of how long children should stay with their mothers was one of the few issues in which Saudi judges employed free ijtihād. The PSL ends this practice. It introduces fixed age limits and allows children over the age of fifteen to choose their custodian. Article 135, paragraph 1 and 2 stipulate:
(1) If the child has turned fifteen years of age, he or she may choose to live with one parent, if the best interests of the child do not require otherwise.
(2) Child custody ends when the child is eighteen years old.
However, the consideration of the child’s best interests is not a new approach. Before the PSL, Saudi ʿulamāʾ already extensively referred to the principle of the child’s best interests to deviate from established opinions in Islamic jurisprudence, as we have seen in Chapter 5.
Remarried mothers’ right to child custody was one of the most significant departures from the teachings of the major schools of jurisprudence. If their new husbands agreed, Saudi judges regularly appointed remarried mothers as custodians for their children. The PSL addresses the issue of a mother’s remarriage in Article 126, Number 1, which states that a woman can only be appointed as custodian if she is not married to a stranger (ajnabī) to the child unless the best interests of the child require otherwise. Compared to the prevailing practice at Saudi courts before the codification, the PSL thus restricts the rights of remarried mothers. Following Ibn al-Qayyim, Saudi judges assumed that a child’s best interests were served by staying with their remarried mother unless proven otherwise. By establishing the loss of custody as the general rule in the case of a mother’s remarriage, the PSL now makes it more difficult for judges to grant custody to remarried mothers.87
The concept of the child’s best interests is also mentioned in the order of the custodians (Article 127), where a judge can deviate from the stipulated order if the child’s best interests require the appointment of another custodian. A further reference is made with regard to the disobedience (nushūz) of the mother (Article 133). According to the PSL, a mother who moves out of the marital home only loses custody of her children if it is in their best interest. All of these regulations correspond to the prevailing practice at Saudi courts before codification.
The PSL’s provisions concerning situations where one parent relocates significantly far away from the other or takes the child on trips outside the country are likewise not new. As we have seen in Chapter 5, Saudi jurists have departed from the rule in premodern Islamic jurisprudence that the mother loses custody if the parents do not live in close proximity. The ʿulamāʾ’s opinion has been incorporated into Article 128, paragraph 2 of the PSL. According to the article, custody is only lost “if the custodian travels to a place in order to live there, which is not in accordance with the best interests of the child.”
In the case of travelling with children, the PSL also largely follows the prevailing practice prior to the codification. The PSL allows a parent to travel outside of Saudi Arabia for ninety days without the permission of the other parent.88 Article 129 stipulates,
With consideration of other related provisions, travel with the child outside of the kingdom is subject to the following rules:
(1) If the custodian is one of the parents, he or she cannot travel with the child outside the kingdom for more than ninety days in one year without the agreement of the other parent or the guardian [al-walī ʿalā al-nafs], in case the father has died.
(2) A custodian other than the parents cannot travel with the child outside the kingdom for more than thirty days in a year without the agreement of the parents or one of them, in case the other parent has died, or the guardian in case both have died.
Contrary to the claims of the Saudi government, the PSL thus did not introduce new rulings in the field of child custody but merely codified the prevailing practice, which built on the ʿulamāʾ’s deviations from the rulings of the major schools of Islamic jurisprudence.
4 The Enduring Influence of Tribal Affiliation
When the PSL was issued, the topic that received the most attention from Saudi lawyers and activists on social media was the equality of spouses (kafāʾa) in marriage. According to Islamic jurisprudence, a woman can only marry a man who is equal to her. If it turns out after the marriage that the man is not equal to the wife, she and her family have the right to petition the court to dissolve the marriage. Women, on the other hand, are not required to be equal to their husbands.
Aside from the Gulf region, marriage equality is nowadays primarily determined by the husband’s socioeconomic status. However, in the Gulf states, the spouses’ nasab traditionally plays an important role, as discussed earlier. In the context of marriage equality, nasab encompasses both affiliation to a male line as well as to a specific social group.89 This also includes what we know as “race” today.
In debates on marriage equality in Saudi Arabia, nasab is mostly associated with affiliation to a particular Arab tribe90 (qabīla). According to Ibn ʿUthaymīn, anyone who “has his roots in the Arab tribes”91 is of lineage (nasīban). Ibn ʿUthaymīn holds that the affiliation to an Arab tribe is based solely on blood and not on language, as one can be Arab without speaking or understanding Arabic.92 The majority of premodern Islamic jurists including the Ḥanbalīs permitted nasab to be considered in determining marriage equality. The Shāfiʿī jurist al-Khaṭṭābī (d. 998) wrote,
Most jurists define marriage equality according to four aspects: religion [dīn], freedom [ḥuriyya] [i.e., not being a slave], nasab, and craftsmanship [ṣanāʿa]. Some jurists also include mental and physical sanity and solvency.93
The most important factor was nasab in the sense of tribal affiliation. The jurists, however, disagreed about which tribes could intermarry. According to most scholars, a woman of the Quraysh, the tribe of the Prophet, could not marry a man from another Arab tribe. Other jurists argued that women of the Hāshimites and the Bānū Muṭṭalib should not intermarry with other Arab tribes, whereas another group of jurists permitted all Arab tribes to intermarry.
But some premodern jurists were also critical of the consideration of nasab in marriage equality. This view was primarily promoted by the Mālikī school, which focused solely on religious piety and the husband’s physical condition.94 However, the opposition to the majority view was not limited to the Mālikīs: Ibn Ḥazm, for example, wrote that, since “Muslims [ahl al-Islām] are all brothers, it is not forbidden for the son of the “blacks” [ibn min al-zanjiyya] to marry a daughter from the Hāshimites.”95
Ibn Taymiyya and Ibn al-Qayyim, too, took a strong stance against the inclusion of nasab in marriage equality. Marriage equality, according to Ibn al- Qayyim, could only be measured by religious piety, not by nasab, freedom, craftsmanship, or wealth. Non-Qurayshī men could thus marry Qurayshī women, and non-Hāshimite men could marry Hāshimite women.96 Ibn Taymiyya wrote that there were some people among the non-Arabs who were far better than most of the Arabs. He maintained that although Islamic law granted certain rights only to Arabs, as, for example, only a man of the Quraysh can become a caliph, no general privilege of the Arabs existed in Islamic law, and thus also not in marriage law.97
Saudi ʿulamāʾ have traditionally been critical of the role of tribes in Saudi society. In their view, Muslims should first and foremost identify as members of the community of believers (umma), not as members of a tribe.98 Nonetheless, some Saudi scholars have supported the consideration of nasab in marriage equality. Muḥammad bin Ibrāhīm, for instance, argued in one of his fatwas that equality in nasab was a requirement for marriage.99 In another fatwa, Muḥammad bin Ibrāhīm maintained that members of the Arab tribes were always equal to one other.100 He criticized the Fatimids (fāṭimiyyūn) for refusing to give their daughters to other Arab tribes as they did not want to share the proceeds of their religious endowments (awqāf) and therefore preferred to intermarry with non-Arabs.101 Muḥammad bin Ibrāhīm argued that although piety (taqwā) was the correct measure of marriage equality, marrying another Arab was preferable.102
Similarly, the current head of the Higher Judicial Institute (Maʿhad al-ʿĀlī li-l-Qaḍāʾ), ʿAbd Allāh bin Aḥmad al-Muḥammādī, supported the view that nasab should be taken into consideration. He argued against focusing on piety (taqwā) in marriage equality, since only God and no human could determine someone’s piety. Furthermore, many of the verses in the Qurʾan and the Sunna that are employed to reject the consideration of nasab address the equality of believers in the afterlife and could not be applied to this world (dunyā) through analogy (qiyās). Al-Muḥammādī acknowledged that people were equal in their rights and obligations in this world but emphasized that they were not equal in their status and class.103 Inequality of status and class were inherent to human nature, and Islamic law could not change this because the division of society along these lines did not violate Islam’s basic teachings.104
He asserted that the consideration of nasab was not mandatory, unlike the other commonly acknowledged aspects of marriage equality such as piety or freedom. However, Islamic law was obligated to respect local customs, including the social importance of a person’s nasab. This ensured a successful marriage and a good and respectful relationship with the wife’s relatives.105 Al-Muḥammādī highlighted that once Arab society stops focusing on tribal affiliation, nasab will no longer be a legal requirement in marriage law.106 Until then, Arab women could not marry non-Arab men. However, according to al-Muḥammādī, there are no distinctions between different Arab tribes or between Arabs of different nationalities.107
Other Saudi scholars are more sceptical of the role of nasab in marriage equality. For instance, Ibn ʿUthaymīn held that nasab was not required at all for marriage equality.108 He complained that, according to some scholars, even distant relatives could end a successful marriage that has lasted for many years. Moreover, Ibn ʿUthaymīn criticized the majority opinion in the Ḥanbalī school, which allows a son who has become his mother’s guardian to go to court and demand the dissolution of his mother’s marriage.109 Ibn ʿUthaymīn called this ruling and, more generally, the pride in one’s tribe, a pre-Islamic (jāhiliyya) custom.110 Ibn Bāz, too, was critical of the inclusion of nasab in marriage equality. He made an interesting argument: the consensus in Islamic jurisprudence that allows Arab men to marry non-Arab women as long as they are Muslim, Christian, or Jewish demonstrated that only religion should be considered in marriage, not tribal affiliation. Ibn Bāz emphasized that Muslims were equal before God and, as a result, equal to each other in marriage.111
Before the codification of family law, the Saudi judiciary did not consider nasab when determining marriage equality. In 2007, the Higher Judicial Council ruled that piety (dīn) was the only criterion for marriage equality. Additionally, the council decided that it was wrong to allow the wife’s brother or other family members to end the marriage and overrule her explicit will and that of her marriage guardian.112 Three years later, the High Court argued that since neither the Quran nor the teachings of the Prophet prohibit marriage between people of unequal nasab, such a marriage was valid.113 In 2016, a spokesperson of the Ministry of Justice emphasized that the reference to nasab could not be used to dissolve a marriage, and Saudi courts would not end marriages due to allegedly unequal nasab. The spokesperson was responding to a controversy sparked by a decision of the court in ʿUyayna, a town north of Riyadh, which dissolved a marriage due to the, in the eyes of the judge, unequal nasab of the couple.114
The draft of the PSL followed the prevailing view among Saudi jurists that piety alone should be used to determine marriage equality. Article 14, paragraph 2 of the draft stated,
Decisive for the marriage equality of a man is his piety [dīn]. Nothing else is considered in [marriage] equality.
In the version later adopted by the Council of Ministers, however, a half-sentence was added, stating that local custom, i.e., tribal affiliation, could also be considered. Article 14 (2) of the PSL stipulates,
Decisive for the marriage equality of a man at the time of the marriage is his piety [ṣalāḥ dīnihi] and all that is considered according to local custom [kull mā qāma al-ʿurf ʿalā iʿtibārihi].
Because local custom in large parts of Saudi Arabia includes the consideration of nasab, the PSL moved away from the line of thinking developed by Ibn ʿUthaymīn and others. Furthermore, the PSL greatly expanded the scope of the relatives’ rights to end a seemingly unequal marriage. Unlike the draft law, which allowed only the wife and her father (if he was her marriage guardian) to end the marriage when they discovered that the husband was not equal, the PSL grants this right to “every relative who has an interest (maṣlaḥa) – until the third grade – and is affected by the inequality of the marriage” (Article 14, paragraph 3).
The regulation of marriage equality in the PSL breaks both with the prevailing practice at Saudi courts and with an important tradition among Saudi ʿulamāʾ which provided autonomy in choosing one’s marriage partner. It is also a step backwards for the rights of those who are not members of one of the prominent Arab tribes, leading to further discrimination on the basis of tribal affiliation.
5 Conclusion
The chapter demonstrated that the PSL introduced only very few changes to family law compared to court practice before the codification, despite the claims by the Saudi government that it was a reformist project. Instead of reforming Islamic family law, the PSL largely rephrased legal opinions that had been developed by Saudi jurists over the last decades, and which the Saudi government then labelled as significant adjustments in Islamic legal doctrine. In some important legal questions, as the chapter has shown, the law can even be considered a step backwards.
At the same time, the PSL illustrates to what extent the Saudi leadership is still tied to Islamic law as defined by the ʿulamāʾ in matters related to the judiciary. Notwithstanding Muḥammad bin Salmān’s announcement that international standards should be incorporated into the PSL, the chapter has demonstrated that the code does not include significant aspects of any foreign or non-Islamic law. This shows that the doctrine of siyāsa sharʿiyya has not (yet) lost its authority in the Saudi state. Fundamental changes to Islamic family law, one of the key areas of Islamic jurisprudence, would have been a clear break with the doctrine and, as a consequence, also with the Basic Law of Governance. As long as a codification of Islamic law does not deviate from the ʿulamāʾ’s understanding, it does not violate the king’s commitment to implementing Islamic law in the legal sector and therefore does not constitute a major shift in the political constitution of the kingdom.
Nevertheless, it remains to be seen how closely judges will follow the PSL and other future codifications of Islamic law. A few indicators point to a growing opposition among judges. This is remarkable in light of the increasingly authoritarian climate in Saudi Arabia. During a meeting with the presidents of the personal status courts in June 2022, minister of justice Walīd al-Samaʿānī saw himself forced to emphasize that the judges are required to apply the PSL.115
The PSL does not mark the end of Islamic jurisprudence in family law in Saudi Arabia. Even though the law is very detailed, especially when compared to the family laws of other Arab countries, not all issues are addressed. In cases not covered by the PSL, the law obliges judges to apply the opinion in Islamic jurisprudence most consistent with the codification. In these cases, it is to be expected that judges will continue to follow their ijtihād.
This was reported by several Saudi newspapers. See, for instance, the article in the Mecca Newspaper, https://bit.ly/3W2gjfz [last access: 24 January 2023].
https://www.okaz.com.sa/news/local/2099481 [last access: 16 January 2023].
See an article in the Saudi newspaper Sabq, available on the newspaper’s homepage https://bit.ly/3WfC2Rm [last access: 16 January 2023].
Asad, Formations of the Secular, 211.
To what extent the majalla still represents Islamic law is disputed among historians of Islamic law. While Schacht argued that the majalla was a secular, not an Islamic code, other scholars see it more as a digest of Islamic law than a code in the European sense. For an overview over the literature on the Ottoman majalla see Guy Burak, “Codification, Legal Borrowing and the Localization of ‘Islamic law,’” in Routledge Handbook of Islamic Law, ed. Khaled Abou El Fadl, Ahmad Atif Ahmad, and Said Fares Hassan (London: Routledge, 2019), 394.
Hans-Georg Ebert, Die Qadrî-Pâshâ-Kodifikation (Frankfurt am Main: Peter Lang, 2010), 19.
Aḥmad bin ʿAbd Allāh al-Qārī, Majallat al-aḥkām al-sharʿiyya (Jeddah: Tiḥāma, 1401/ 1981), 29.
Ibid., 30. See Chapter 2.
Al-Fāyiz, Taqnīn al-aḥkām al-qaḍāʾiyya, 48.
The decision is published together with the dissenting opinions in al-Amāna al-ʿĀmma li-Hayʾat Kibār al-ʿUlamāʾ, Abḥāth hayʾat kibār al-ʿulamāʾ, 3:115–271. Some newspaper reports mention that the Senior Scholars had already refused codification in 1973. However, the decision does not seem to have been published and there is no information about it.
This was pointed out by Nāṣir bin ʿAbd Allāh al-Maymān in a lecture on the codification of Islamic law, available on YouTube: www.youtube.com/watch?v=LR6-EaA3OYI&t=942s, min 1 [last access: 21 April 2023].
The dissenting opinions can be found in al-Amāna al-ʿĀmma li-Hayʾat Kibār al-ʿUlamāʾ, Abḥāth hayʾat kibār al-ʿulamāʾ, 3:240–71.
Instead of focusing on codifying the law, the Saudi government increasingly concentrated on other ways to establish legal security, as we saw in Chapter 4.
ʿAbd Allāh al-ʿIlmī, “Hadhihi al-fatwā ghayr mulzima,” article in the newspaper Al-ʿArab, 17 December 2014. Available on the website of Al-ʿArab: bit.ly/2JLeDa5 [last access: 18 June 2022]; Saʿad al-Utaybī mentions these rumors, see al-ʿUtaybī, Maqālāt fī al-siyāsa al-sharʿiyya, 17. Frank Vogel writes that he also heard rumors that the Council issued a favorable decision in 2010. See Vogel, Saudi Business Law, 32.
Interview with Ibn Khunayn in his home in Riyadh, 24 April 2018. Manṣūr al-Ḥaydarī was also not aware of another decision by Council. Interview with Manṣūr al-Ḥaydarī in the Ministry of Justice in Riyadh, 8 May 2018.
This was confirmed to me in 2018 by Manṣūr al-Ḥaydarī, who was a member of the drafting committee. Interview with Manṣūr al-Ḥaydarī in the Ministry of Justice in Riyadh, 8 May 2018.
Interview with Manṣūr al-Ḥaydarī and Bashār al-Mufadda in the Ministry of Justice in Riyadh, 8 May 2018.
The crown prince’s statement was made public by the Saudi Press Agency, see www.spa.gov.sa/2187777 [last access: 15 February 2021].
https://www.okaz.com.sa/news/local/2099337 [last access: 31 March 2022].
As of early 2023, the other codifications of Islamic law have not yet been issued.
The list was shared on social media but also in newspapers. See, for example, the news website Mubasher https://bit.ly/3irmqMM.
My investigations into the new law are partly based on some of my earlier work on Islamic law in Saudi Arabia. See Dörthe Engelcke, Dominik Krell, and Nadjma Yassari, “Underage Marriage: Legal and Social Practice in Muslim Jurisdictions,” Arab Law Quarterly (forthcoming); Krell, “Saudi Arabia”; and Dominik Krell, “Was kann man von Saudi-Arabien für die Entwicklung des islamischen Familienrechts in Europa lernen?” in Migration und Heimatrecht, ed. Irene Schneider, Hatem Elliesie, and Silvia Tellenbach (Wiesbaden: Harrassowitz, 2022).
For more information on minor marriage in Islam and in the legislation of other Arab countries, see Engelcke, Krell, and Yassari, “Underage Marriage”; and Dominik Krell, “The Role of Jurists in Contemporary Islamic Family Law,” Arab Law Quarterly (forthcoming).
Aḥmad bin ʿAbd al-Rāziq al-Dawīsh, Fatāwā al-Lajna al-Dāʾima li-l-Buḥūth al-ʿIlmiyya wa-l-Iftāʾ (Riyadh: Riʾāsat Idārat al-Buḥūth al-ʿIlmiyya wa-l-Iftāʾ, n.d.), 9:16.
Ibid.
Ibn Bāz, Majmūʿ fatāwā wa-maqālāt mutanawwiʿa, 4:126–28.
See ʿAbd al-Muḥsin bin Ḥamd al-ʿAbād’s polemic reaction against the government’s plans. The fatwa is printed in ʿAbd al-Raḥmān bin Saʿd al-Shithrī, Ḥukm taqnīn manʿ tazwīj al-fatayāt aqall min 18 sana wa-taḥdīd sinn al-zawāj (Al-Fayyūm: Dār al-Falāḥ. 1431/ 2010), 104.
The fatwa is printed in ibid., 94.
The fatwa is printed in ibid., 99.
Ibid., 100.
The fatwa is printed in ibid., 88.
The most famous example of this is the ban on female driving.
The fatwa can be found on al-ʿAwnī’s homepage: https://www.dr-alawni.com/articles.php?show=61 [last access: 21 November 2022].
Ibn ʿUthaymīn, Al-Sharḥ al-mumtiʿ, 12:58.
The shaykh gave a fatwa on the question of minor marriage in his TV show Al-Abwāb al-Mutafarriqa. See https://www.youtube.com/watch?v=2fXIfEYmCe8 [last access: 21 November 2022].
Circular letter (no. 13/t/7969 of 26.4.1441 (24.12.2019), The circular is available on the Ministry of Justice’s homepage, see https://portaleservices.moj.gov.sa/TameemPortal/TameemList.aspx?id=37403 [last access: 26 October 2022].
See Engelcke, Krell, and Yassari, “Underage Marriage.”
However, the failure to prove a marriage can result in harsh penalties. Saudi criminal law prohibits premarital sexual relations (zinā), which can include being alone with the opposite gender. In the past, Saudi judges have imposed harsh taʿzīr penalties in cases where opposite sexes simply met. Because the police can check marriage certificates, whether during an ongoing investigation or in public, not having registered the marriage can lead to accusations of premarital sexual relations.
For more information on filiation in Saudi Arabia prior to the codification, see Krell, “Saudi Arabia.”
Sebastian Maisel, “The New Rise of Tribalism in Saudi Arabia,” Nomadic Peoples 18, no. 2 (2014): 103.
Navid Samin, Of Sand or Soil: Genealogy and Tribal Belonging in Saudi Arabia (Princeton: Princeton University Press, 2015).
Al-Bukhārī, Ṣaḥīḥ al-Bukhārī, 1686 (No. 6818).
Krell, “Saudi Arabia,” 310.
Ibn ʿĀbidīn, Radd al-muḥtār, 5:230.
Al-Ramlī, Nihāyat al-Muḥtāj (Beirut: Dār al-Kutub al-ʿIlmiyya, 1424/2003), 7:112.
Al-Bahūtī, Kashshāf al-qināʿ, 5:414.
Ibn Rushd, Bidāyat al-mujtahid wa-nihāyat al-muqtaṣid, 3:219.
Ṣāliḥ bin Fawzān al-Fawzān, Mulakhkhaṣ al-fiqhī (Riyadh: Dār al-ʿĀṣima, 1423/2002), 2:416.
Ibn ʿUthaymīn, Tashīl al-farāʾiḍ (Riyadh: Dār al-Ṭayba, 1404/1983), 102.
Al-Qāsim, Fatāwā wa-rasāʾil, 11:151.
ʿAbd al-ʿAzīz bin ʿAlī al-Ghāmdī, “Aqall muddat al-ḥaml wa-aktharuha bayna al-fiqh wa-l-ṭibb,” Majallat al-ʿAdl 43 (1430/2009): 221.
Mecca General Court, decision Nr. 11/29/16 (14.3.1429/22.3.2008).
Saudi jurists usually discuss the question of the maximum length of pregnancy in the context of succession law. It is therefore likely that disputes regarding the paternity of children arise in practice during the division of a person’s estate.
See for instance Jeddah General Court, decision Nr. 3432937 (9.2.1434/23.12.2012). However, some Saudi judges have ordered DNA testing before starting the liʿān procedure, through which men can deny paternity.
Al-Dawīsh, Fatāwā al-lajna al-dāʾima, 20:389.
Al-Qāsim, Fatāwā wa-rasāʾil, 11:146.
Ibn Bāz, Majmūʿ fatāwā, 12:402.
Ibn Taymiyya, Majmūʿat al-fatāwā, 16:73; Ibn al-Qayyim, Zād al-maʿād, 5:381.
Ibn Taymiyya, Majmūʿat al-fatāwā, 16:73.
ʿAdnān bin Muḥammad al-Daqaylān, “Nasab walad al-zinā,” Majallat al-ʿAdl 22 (1425/2004): 138.
Decision of the High Court Nr. 12/M (10.5.1435/12.3.2014), printed in Markaz al-Buḥūth, Al-Mabādiʾ wa-l-qarārāt, 194.
The following part is based on Krell, “Was kann man von Saudi-Arabien lernen.”
Yossef Rapoport, Marriage, Money, and Divorce in Medieval Islamic Society (Cambridge: Cambridge University Press, 2005), 94.
Munir, “Triple Ṭalāq,” 32.
Ibn Taymiyya, Majmūʿat al-fatāwā, 16:73; Ibn al-Qayyim, Zād al-maʿād, 33:8–9.
Carolyn Baugh, “Ibn Taymiyya’s Feminism?: Imprisonment and the Divorce Fatwās,” in Muslima Theology: The Voices of Muslim Women Theologians, ed. Ednan Aslan, Marcia Hermansen, and Elif Medeni (Berlin: Peter Lang, 2013), 185.
Munir, “Triple Ṭalāq,” 37–40.
Baugh, “Ibn Taymiyya’s Feminism?,” 184.
Al-Qāsim, Fatāwā wa-rasāʾil, 11:30.
Ibid., 11:37.
Frank Vogel, “The Complementarity of Iftaʿ and Qaḍa: Three Saudi Fatwas on Divorce,” in Islamic Legal Interpretation: Muftis and Their Fatwas, ed. Muhammad Khalid Masud, Brinkley Messick, and David Powers (Harvard: Harvard University Press, 1996), 266.
Ibid., 268. Vogel notes that if the wife had insisted on divorce, the judge would probably have followed her wish despite Ibn Bāz’s fatwa.
Ibn Bāz, Majmūʿ fatāwā, 21:304–6.
Unfortunately, the letter is not dated, but Ibn Bāz served as Grand Mufti of Saudi Arabia from 1993 until his death in 1999.
At the end of the letter, Ibn Bāz gets surprisingly direct: “I request you to take up the matter and inform His Eminence [faḍīlat al-shaykh] the judge at the high court in Dammam of your renunciation of the fatwa. By doing so, you give precedence to the law and uphold the sources of Islamic law,” Ibid., 306. Unfortunately, Ibn ʿUthaymīn’s reply is not printed.
Ḥamd bin ʿAbd al-ʿAzīz al-Khuḍayrī, Al-Ijrāʾāt al-qaḍāʾiyya (n.p., n.d.), 108.
Interestingly, no judgments on ṭalāq can be found in the first collection of judgments from 1434.
Muwayḥ General Court, decision Nr. 3544607 (26.2.1435/30.12.2013).
See Article 37, paragraph 2 of the Iraqi or Article 92, paragraph 1 of the Syrian Personal Status Law. Ibn Taymiyya’s opinion is particularly popular among the scholars of the Ahl al-Ḥadīth in India and Pakistan, see Munir, “Triple Ṭalāq,” 37.
While Ibn Taymiyya’s opinion is followed by most Islamic scholars today, it remained controversial in India until it was introduced by law in 2019. The law was controversial because it also criminalized uttering the ṭalāq three times. Men can now be punished with up to three years imprisonment, see https://www.bbc.com/news/world-asia-india-49160818 [last access: 24 March 2022].
In terms of legal consequences, a divorce in Islamic law is considered either ṭalāq or faskh, regardless of how it came about. In the case of khulʿ, it is disputed whether it should be regarded as ṭalāq or faskh. While the Ḥanafīs, Mālikīs, and Shāfiʿīs considered khulʿ to be ṭalāq, the majority of Ḥanbalīs saw it as faskh. See al-Zuḥaylī, Al-Fiqh al-islāmī wa-adillatuhu, 9:7035.
The shiqāq procedure was already included in the draft law. However, the draft law did not specify whether the conciliation procedure is a part of judicial khulʿ. As we have seen in Chapter 6, most Saudi scholars presuppose that the arbitration procedure has to take place during the khulʿ procedure in court.
Article 109 PSL: “If no harm can be proven, which makes it impossible to maintain cohabitation in an ordinary way, the rift (shiqāq) between the spouses persists, and mediation is impossible, each of the spouses chooses an arbitrator from his or her family within a time limit set by the court. If not, the court, if possible, appoints two arbitrators from the two families. If [no one from their families can be appointed], then someone who can be expected to have the capacity to mediate. The court sets a time limit for the proceedings, which cannot exceed sixty days from the date of the appointment of the arbitrators.”
Article 110 PSL: “The arbitrators hear the spouses, ascertain the reasons for the rift, and attempt to mediate between them. The refusal of one of the spouses to cooperate with the arbitrators does not affect their work.”
Article 111 PSL: “If it is impossible for the arbitrators to settle [the dispute] between the spouses, they decide on the separation, either with or without compensation (ʿiwaḍ). It can never exceed the dowry paid to the woman. The arbitrators submit a report to the court containing everything they have done to reconcile the spouses and the opinion they reached together with an account of the positions on which it is based.”
Here lies the crucial difference between the arbitration procedure recognized by all four major schools of law in the event of a rift between the spouses and judicial khulʿ. None of the schools of law allow a woman to divorce if the arbitrators cannot reach an agreement or decide to continue the marriage. The Ḥanbalīs and Ḥanafīs limit the role of the arbitrators solely to mediation between the spouses and do not allow them to decide on the divorce. The Mālikīs allow the arbitrators to decide on the separation of the spouses, by which the judge is bound. However, if the arbitrators cannot reach an agreement about the separation, no divorce takes place. According to one opinion within the Shāfiʿī school, the arbitrators can be authorized by the spouses to end the marriage (either as khulʿ or as ṭalāq without restitution). Another opinion within the Shāfiʿī school allows the arbitrators to act as agents against the will of the spouses. In doing so, the arbitrators can also decide to continue the marriage against the wife’s will. See Wizārat al-Awqāf wa-l-Shuʾūn al-Islāmiyya al-Kuwaitiyya, Al-Mawsūʿa al-fiqhiyya al-kuwaitiyya, 29:53–55.
The PSL addresses the issue also in the context of a woman’s obligation to live with her husband and allows that a mother lives with her children from an earlier marriage if the husband agrees. Article 57, paragraph 2 stipulates, “The wife may reside with her children from other than her husband if they do not have another guardian or if they are harmed by her departure, or if the husband agrees explicitly or implicitly and the husband may divorce whenever he incurs harm from that.”
The PSL contains no provisions for travel within the kingdom.
ʿAbd Allāh bin Aḥmad al-Muḥammādī, “Al-Kafāʾa bayna al-zawjayn fī al-nasab wa-taṭbiqātuhu al-qaḍāʾiyya,” Majallat al-ʿAdl 8 (1422/2001): 27–28.
In anthropological literature, the concept of tribes is criticized due to its evolutionary connotations. However, as Sebastian Maisel has pointed out, the concept of tribes on the Arab peninsula reflects indigenous perceptions of identity and can therefore be used. See Maisel, “New Rise of Tribalism,” 101.
Ibn ʿUthaymīn, Al-Sharḥ al-mumtiʿ, 12:101.
Ibid., 12:104.
Al-Khaṭṭābī, Maʿālim al-sunan (Aleppo: Al-Maṭbaʿa al-ʿIlmiyya, 1352/1933), 3:207.
Mohammed Fadel, “Reinterpreting the Guardian’s Role in the Islamic Contract of Marriage: The Case of the Maliki School,” Journal of Islamic Law 3, no. 1 (1998): 14.
Ibn Ḥazm, Al-Muḥallā bi-l-Athār (Beirut: Dār al-Kutub al-ʿIlmiyya, 1425/2003), 9:151 (Nr. 1867).
Ibn al-Qayyim, Zād al-maʿād, 5:145.
Ibn Taymiyya, Majmūʿat al-fatāwā, 19:30.
The same argument is made regarding nationalism. Muḥammad Nāṣir Al-Albānī, for instance, issued a controversial fatwa criticizing Palestinian nationalism. Instead of fighting for a Palestinian state, al-Albānī argued that Palestinians should concentrate on their religion and follow a religious lifestyle. He claimed that because of the Israeli occupation, a religious lifestyle was not possible, and Muslims should therefore leave Palestine. See Lacroix, “Al-Albani’s Revolutionary Approach,” 6.
Al-Qāsim, Fatāwā wa-rasāʾil, 10:121.
Ibid., 10:122.
Ibid.
Ibid., 10:123.
Al-Muḥammādī, “Al-Kafāʾa bayna al-zawjayn,” 37.
Ibid., 38.
Ibid., 46.
Ibid., 47.
Ibid., 48.
Ibn ʿUthaymīn, Al-Sharḥ al-mumtiʿ, 12:101.
Ibid., 12:104.
Ibid., 12:105.
Ibn Bāz, Majmūʿ fatāwā, 20:401–3.
Decision of the Higher Judicial Council Nr. 5/1228 (1.8.1428/15.8.2007), printed in Markaz al-Buḥūth, Al-Mabādiʾ wa al-qarārāt, 181.
Decision of the Higher Judicial Council Nr. 3/3/8 (10.2.1431/26.1.2010), printed in Markaz al-Buḥūth, Al-Mabādiʾ wa al-qarārāt, 181.
See an article by the Saudi newspaper Sabq, https://bit.ly/3Vl8Fgt [last access: 23 Novem- ber 2022].
https://www.okaz.com.sa/news/local/2106523 [last access: 16 January 2023].