Table of Contents
Saudi Arabia, a country found in the Middle East, has its legal system based on Sharia. Sharia law is an Islamic legal system that is derived from the Holy Quran and Islamic scholarly consensus that was developed after the death of Prophet Muhammad (What is commonly referred to as Sunnah) (al-Hibri, 2009). Saudi Arabia is governed with strict enforcement to Sharia law. Saudi legal system is different from that of other non-Islamic counties in many ways. For instance, criminal suspects can be detained without charge, and a legal presentation is not always guaranteed. Marriage and divorce is also an area of contention the way it appears in Sharia and Saudi Law. The contention originates from the fact that there is a different presentation of the two subjects from the traditional cultural (pre-Islamic) perspective and the Sharia perspective. This paper intends to present an in-depth understanding of the issue of marriage and divorce as outlined in Sharia and Saudi law.
Origin of the Marriage and Divorce Law in Saudi
The view of marriage and divorce in respect with women in Saudi is largely in two perspectives: Jahiliyah (pre-Islamic) and the Islamic perspective which is outlined in Sharia law. In the pre-Islamic, there were cultural and social beliefs that look down on women. Islam has prohibited some of those practices. For instance, during the pre-Islam period, women were treated as chattel that was transferable upon the demise of their husband. Furthermore, women had no inheritance right, and thus marriage decisions could only be made by men. However, the Holy Quran prohibited such undertakings and instead accorded women more respect and say on family and marriage matters. Matters of marriage and divorce in Sharia are derived from the teachings of the Quran (Thompson, 2007). Additionally, it is important to note at this stage that Islamic family laws were originally not codified. Therefore, whenever judges were faced with a challenge they would refer to the Quran, Sunnah, and rulings of recognized jurists.
Role of Women in the Current Family Law System
In the book Marriage on Trial, Ziba Mir-Hosseini takes the discussion on Sharia law and women to a different level (Mir-Hosseini, 2000). The writer in the discussion tries to understand how the Sharia law works instead of blaming it on the problems of women in the society. In this book, the author states that women have been sidelined because they are not able to use the Sharia law to make their case and claim for their rightful position in the family. This can only be possible if women shun undertakings that are against the teaching of the Quran and Sharia law.
Although some aspects of marriage in Saudi are dictated by cultural and social settings, Sharia sends some light on divorce and marriage. During the pre-Islamic period, polygamy was a common practice, but Islamic law limits it to a conditional four wives. Conditional means that one is allowed to be polygamous only if they meet specific standards (Mashhour, 2005). Sharia law states that one a man can have a maximum of four wives only if they can deal justly with them. However, Prophet Mohammed is seen to discourage polygamy when he forbids Ali from taking another wife. On matters of divorce, both men and women are accorded rights to divorce under Sharia law. Although Sharia law outlines various ways through which one may acquire a divorce, Islamic law teachers discourage unnecessary divorce.
- al-Hibri, A. Y. (2009). Marriage and Divorce: Legal Foundations. The Oxford Encyclopedia of the Islamic World, 493-495.
- Mashhour, A. (2005). Islamic law and gender equality: Could there be a common ground?: A study of divorce and polygamy in Sharia Law and contemporary legislation in Tunisia and Egypt. Human Rights Quarterly, 27(2), 562-596.
- Mir-Hosseini, Z. (2000). Marriage on trial: A study of Islamic family law. IB Tauris.
- Thompson, E. L. (2007). Choice of laws or choice of culture: How Western treat the Islamic marriage contract in domestic courts. Wis. Int’l LJ, 361-395.