Saudi Arabia: Forced Divorce—Women under Perpetual Guardianship of Male Relatives

The couple was happily married and had two children, a girl Nuha, born in May 2004, and a boy Suleiman, born in November 2005. In 2004, after the death of her father, Fatima’s half brothers filed a petition in the General Court of Jof asking the judge to divorce her from Mansour on grounds of incompatibility, because Mansour was from an “inferior background” and the marriage “affected and ruined the family reputation.” The judge who applied his interpretation of Islamic law (shariah) agreed, stating that “if a woman is married to an incompatible person, the woman or guardians who are not happy with the marriage may have it invalidated.” The judge stated that all relatives of a woman have the right to have her divorced specifying that “such a choice belongs to distant relatives even if closer ones accept the marriage, and even if the wife is content with it, owing to the resulting sense of disgrace.” The judge decreed Fatima and Mansour’s divorce, even though this was against their will, and assigned one of Fatima’s half brothers as her legal guardian. On appeal, the Cassation Court, the highest court in Saudi Arabia, upheld this decision. Photo: Mansour with his daughter Nuha

Fatima refused to recognize the decision of the court and, as a result, was sent to prison for nine months along with her infant son, despite the fact that she had not committed any crime under Saudi law and there was no legal basis for her imprisonment. After being released from prison in April 2007, Fatima and her son went to live in an orphanage run by the Ministry of Social Welfare, because she refused to be released into the custody of her new legal guardian, her half brother, and, as a woman, custom dictates that she cannot live by herself. Fatima is largely confined to the orphanage with her child and is unable to move around freely. Mansour also refused to sign the divorce papers and consequently has been “blacklisted” by the Saudi government. He has not been able to renew his passport, identity card or driver’s license or to update his bank account. He is constantly moving, along with his four year old daughter, because he is “wanted” by the Saudi government. As a result, he has not been able to keep his job at a computer company, and his ability to support himself and his family has been compromised. He depends on relatives and donations to support himself and his daughter.

The judgment of the Cassation Court can only be overturned by the King of Saudi Arabia. Fatima, now 35 years old, has stressed that she will not give up hope of being reunited with her daughter and husband. She believes that her inheritance from her father is one of the reasons her half-brothers petitioned for her divorce, allowing them through legal guardianship to retain control over her property.

Saudi Arabia does not have a codified personal status law that regulates family relations, including marriage and divorce. Instead, judges apply their interpretation of shariah in making decisions in individual cases. Forced marriages of women, or marriages concluded without the consent of the woman, are common in Saudi Arabia. Forced divorce, or divorce concluded without the consent of either party to the marriage, however, appears to be a more recent phenomenon. Human rights advocates within Saudi Arabia have contested the ruling in Fatima’s case arguing that it is not a correct interpretation of shariah. The National Society of Human Rights reportedly submitted two studies conducted by Islamic scholars stating that if a woman’s legal guardian represented her at the wedding, then other relatives have no right to object to the marriage based on compatibility, rather this right could only be exercised by the married woman.

According to Saudi human rights activist, Fauzia al Ayouni, since the decision in Fatima’s case, several other cases of relatives seeking to dissolve women’s marriages without their consent have been filed. One such case is that of R. A. E., a 27 year old physician who married her husband in Bahrain without the consent of her father. R. A. E.’s father succeeded in having a court announce her divorce without her consent, and return her to his guardianship, on the basis of incompatibility. Similarly, Um Rimas, who married Abdallah El Mahdi with her father’s consent and who has since had a baby girl, is facing the same fate. Her father has petitioned the court to divorce her on the basis of her husband’s inferior status, having apparently changed his mind about the couple’s social compatibility. The case is pending in the court, and the couple is calling on human rights organizations to support their efforts to keep their family together.

Saudi Arabia has ratified the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) with a reservation that it is not under obligation to observe any terms of CEDAW that contradict norms of Islamic law. This reservation is drawn so widely as to be incompatible with the object and purpose of CEDAW and, therefore, impermissible under Article 28(2) of CEDAW. In the context of its first report submitted under CEDAW in 2008, the government stated categorically that “a woman has the right to choose a husband and to enter into marriage only with her consent”, and asserted that male guardianship over women is not legally prescribed. However, this is clearly not the practice, as is evident from the court ruling in Fatima’s case. In Saudi Arabia, a woman is considered to be under the guardianship of her father or closest blood-related male relative all her life.

The Committee on the Elimination of Discrimination against Women, in its concluding comments to Saudi Arabia in April 2008, noted with concern that “the concept of male guardianship over women (mehrem), although it may not be legally prescribed, seems to be widely accepted; it severely limits women’s exercise of their rights under the Convention, in particular with regard to their legal capacity and in relation to issues of personal status, including marriage, divorce, child custody, inheritance, property ownership and decision-making in the family, and the choice of residency, education and employment.” The Committee urged Saudi Arabia to take immediate steps to end the practice of male guardianship over women.

Article 16 of CEDAW requires States parties to “eliminate discrimination against women in all matters relating to marriage and family relations” and to ensure that women have the same rights as men “to choose a spouse and to enter into marriage only with their free and full consent” and “the same rights and responsibilities during marriage and at its dissolution.” Forced marriages of women, and marriages which require the consent of a woman’s guardian, violate such obligations. In addition, the concept of male guardianship over women and the right given to male relatives to forcibly divorce a woman are contrary to CEDAW’s basic premise of equality between men and women.

Equality Now recommend the following actions:

Please write to the King of Saudi Arabia and the Minister of Justice asking them to ensure that the Saudi legal and judicial system reflect the stated claim that women are not subject to male guardianship, but rather have the right, among other things, to enter into and stay in marriages of their choice without third party interference. In this respect, urge them to support the establishment of a codified personal status law to guarantee the rights of women in marriage and divorce, ensuring that such law is based upon principles of equality and non-discrimination. Call upon them to take urgent action to reunite Fatima, Mansour and their children as a family whose rights are recognized and protected under the Saudi Constitution, as well as other couples who have been divorced without their consent (to the extent such couples want to be reunited) and to ensure that no couple is divorced without the consent of at least one of them. Letters should go to:

His Majesty, King Abdullah bin Abdul Aziz Al Saud
Kingdom of Saudi Arabia
Tel: +966 1 488 2222
Fax: +966 1 491 2726

His Excellency Dr. Muhammad bin Abdul Elkarim Abdul Azziz El Issa
Minister of Justice
University Street, Riyadh 11137
Kingdom of Saudi Arabia
Fax: +966 1 401 1741

With a copy to:

Dr. Bandar bin Abdullah El Aiban
President
The Human Rights Commission
P.O. Box 58889 Riyadh 11515
King Fahed Street
Building 373, Riyadh
Kingdom of Saudi Arabia
Fax: +966 14 612 061
Email: shakwa@haq-ksa.org

Source: Equality Now