Custody and Maintenance under the Saudi Personal Status Law: Order of Custodians, Age of Choice, Visitation, and Assessing and Enforcing Maintenance

What is custody, and who gets it after divorce?

Custody is protecting a person who cannot fend for themselves from harm, and caring for their interests and upbringing, as defined by Article 124 of the Personal Status Law issued by Royal Decree No. (M/73) dated 6/8/1443H.

Article 127 provides that custody is a duty of both parents as long as the marriage subsists; if they separate, the order of custodians is as follows:

• The mother.
• Then the father.
• Then the maternal grandmother.
• Then the paternal grandmother.
• Then the court decides what serves the child’s interest.

This order is not absolute; the court may decide otherwise based on the child’s interest. The child’s interest is the governing standard in all custody matters, and it is what the court examines in a dispute by looking at each party’s circumstances and ability to provide care.

Factors commonly presented to show the child’s interest include: stable housing close to the school, the child’s regular school attendance, who actually provides day-to-day care, the health of the relationship between the child and each parent, and the custodian’s willingness to allow the other parent to visit. It helps to submit specific documents rather than general statements, such as school certificates, medical reports concerning the child, and the lease.

What are the custodian’s conditions, and when is custody forfeited?

Under Article 125, the custodian must have full legal capacity, be able to raise, protect and care for the child, and be free of serious infectious diseases. The law adds conditions relating to the custodian’s family situation, including the remarriage of a female custodian, while leaving room for the court to assess the child’s interest.

Custody is forfeited if one of its conditions is not met, and the right may revert to its holder once the cause of forfeiture ceases, as set out in the law. In practice, the right is not forfeited merely because the other party claims so; the dispute is brought before the court, which decides based on the evidence. It is therefore important to document relevant facts, such as a move to another city or a change in housing or care arrangements.

When may the child choose? And how long does custody last?

Once the child reaches fifteen years of age, they may choose to live with either parent, unless their interest requires otherwise, under Article 135. Custody ends when the child reaches eighteen, with exceptions set out in the law for those who cannot fend for themselves after that age.

The child’s choice is not automatically decisive; the court verifies that it genuinely serves the child’s interest. The court may reject the choice if it finds that it harms the child’s schooling, care or stability. The end of custody does not mean the end of the child’s maintenance, as each has its own separate rules, as explained in the maintenance section.

How are visitation and travel with the child arranged?

The parent with whom the child does not reside has the right to visit the child, host the child, and take the child out, under Article 134. As a rule, the parents agree on the times, place and duration of visits; if they disagree, the court sets them in a way that serves the child’s interest.

As for travel, Article 129 prohibits a custodian who is one of the parents from traveling with the child outside the Kingdom for more than ninety days a year without the other parent’s consent, with different rules if the custodian is not a parent. Practical points to consider when reaching an agreement:

• Setting visitation days and hours and the pick-up and drop-off location.
• Arranging holidays, Eids and school breaks.
• Agreeing on how phone or video contact with the child will take place.
• Documenting the agreement or submitting it to the court so that it is enforceable.

What is maintenance, and who owes it?

Maintenance covers food, clothing, housing and basic needs according to custom and the applicable statutory rules, under Article 45. It varies by beneficiary:

• Wife’s maintenance: owed by her husband under a valid marriage contract, subject to the conditions in Article 51.
• A wife’s right to maintenance is extinguished only by payment or release, and her claim for maintenance for a past period exceeding two years from the date the lawsuit is filed will not be heard (Article 52).
• Children’s maintenance: owed by the father alone for a child who has no property, if the father is well-off or able to earn. It continues for a son until his peers are able to earn, and for a daughter until she marries (Article 58).

Children’s maintenance is independent of the parents’ relationship; it is not extinguished by divorce or khul’, and it may not be waived in exchange for separation. Read more in the guide to khul’ under the Personal Status Law.

How is maintenance assessed?

Maintenance is assessed by balancing the condition and needs of the recipient against the means and ability of the payer, as provided in Article 46. There is no fixed amount for every case; the court assesses the amount based on the evidence submitted. Documents that help in the assessment include:

• Proof of the payer’s income, such as a salary certificate, bank statements or a commercial register.
• Proof of the beneficiary’s needs, such as a lease, school fees and regular medical treatment.
• The children’s birth certificates and the marriage or divorce certificate.
• Proof of past payments, such as bank transfers, since payment is one of the grounds on which maintenance is extinguished.

The claim should be itemized as far as possible: a monthly amount for the children, an amount for housing if none is provided, and school and medical expenses, with each item linked to its supporting document. A detailed claim makes the assessment easier for the court and reduces the need for clarification. Maintenance changes as circumstances change, so an increase or reduction may be requested if the payer’s situation or the beneficiary’s needs change materially.

How is a custody, maintenance or visitation lawsuit filed?

Personal status courts have jurisdiction over custody, maintenance and visitation under Article 33 of the Law of Sharia Procedure; where there is no personal status court, the lawsuit is filed with the general court. The statement of claim is submitted electronically through Najiz after logging in with Nafath, and the claimant may submit it personally or through an agent.

Before or alongside litigation, settlement is available through Taradhi, the Ministry of Justice platform, which suits many family disputes because it preserves the relationship between the parents; read about settlement and mediation. For the other family law rules, see the Personal Status Law guide.

How is a maintenance, custody or visitation judgment enforced?

A judgment is enforced by submitting an enforcement request through the “Submit Enforcement Request” service on Najiz, which covers personal status requests as well as financial ones. Court judgments are enforceable instruments under Article 9 of the Enforcement Law issued by Royal Decree No. (M/53) dated 13/8/1433H. Practical points include:

• A maintenance judgment is a financial judgment, so if it is not complied with after notification, the well-known compulsory enforcement measures may be requested; read about Article 46 measures and service suspension.
• As a rule, a custody or visitation judgment is enforced in the child’s city specified in the judgment, as clarified by the Ministry of Justice.
• An enforcement request requires an active bank account in the applicant’s name, and a valid power of attorney authorizing the filing of enforcement requests if submitted by an agent.

The Maintenance Fund was established by a Council of Ministers resolution to pay court-awarded maintenance to beneficiaries in cases of default, and its regulation has been updated, so it is advisable to verify its conditions and supervising authority at the time of applying. A final note: the new Enforcement Law was issued by Royal Decree No. (M/237) dated 3/11/1447H and had not yet taken effect at the time of writing, so the current law applies until the new one takes effect. For details, read about the Enforcement Court. A consultation can be requested to review documents before filing a lawsuit or an enforcement request.

Frequently asked questions

Who gets custody after divorce in Saudi Arabia?

The mother, then the father, then the maternal grandmother, then the paternal grandmother, then the court decides what serves the child’s interest, under Article 127 of the Personal Status Law. The court may depart from this order if the child’s interest so requires.

When may a child choose to live with one parent?

Once the child reaches fifteen, unless their interest requires otherwise, under Article 135. Custody ends when the child reaches eighteen, with specific exceptions in the law.

Is a mother’s custody automatically forfeited if she remarries?

The right is not forfeited merely by a claim; the law sets conditions relating to the custodian’s family situation while leaving the assessment to the court according to the child’s interest. Any dispute over this is brought before the personal status court to decide based on the evidence.

Can a wife claim maintenance for past years?

A claim for a wife’s maintenance for a past period exceeding two years from the date the lawsuit is filed will not be heard, under Article 52. It is therefore advisable not to delay the claim once payments stop.

How long does a father’s duty to maintain his children last?

A son’s maintenance continues until his peers are able to earn, and a daughter’s until she marries, provided the child has no property and the father is well-off or able to earn, under Article 58.

What do I do if a maintenance or visitation judgment is not complied with?

Submit an enforcement request through the “Submit Enforcement Request” service on Najiz, with a copy of the judgment, the details of the party against whom enforcement is sought, and an active bank account. The Enforcement Court takes the statutory measures in case of non-compliance, depending on the type of judgment.