Wednesday, June 07, 2017

CUSTODY OF CHILDREN IN KUWAITI LAW




By

Professor Gabriel Sawma



GEOGRAPHY AND HISTORY

Kuwait is located on the northeastern part of the Arabian Peninsula, known as Arabia, and on the northwestern head of the Persian Gulf. The country is rich, and is estimated to have the fifth largest petroleum reserves in the world. The country became independent on June 19, 1961 and is ruled by the Sabah family, who has been ruling this country for two hundred years.

On August 2, 1990, Iraq, led by Saddam Hussein, invaded and annexed Kuwait. This led the United States, under President George H. W. Bush, who created a coalition of other nations to launch Operation Desert Storm to liberate Kuwait. The war lasted until February 28, 1991, and resulted in a convincing victory for the U.S and its coalition.

Kuwait is a constitutional hereditary monarchy with its cabinet (Council of Ministers) appointed by the Emir, and a National Assembly that is elected every five years. The Parliament serves as a legislative body with the power to overturn the decrees issued by the Emir, who is head of state. The constitution of Kuwait was adopted in 1962, and the parliament is elected every four years.

Islam is Kuwait’s religion. Roughly 70% of the state’s inhabitants are Sunni, while 30% are Shi’as. More than fifty percent of the residents of Kuwait are foreigners, who are able to establish their own schools and practice their religious faiths.

On May 16, 1999, the emir of Kuwait, Shaikh Jabir al-Sabah, issued a decree to grant Kuwait women the right to vote and to run for office “in recognition of their vital roles in building Kuwaiti society and in return for the great sacrifices they had made during various challenges the country faced.”

In 1994, Kuwait signed the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). Upon ratification, it incorporated reservations on a number of provisions, including one giving equal rights to men and women with respect to guardianship and adoption of children, saying that they conflicted with Islamic law. Kuwait’s personal status law, as we shall see below, is theoretically based on Islamic Shari’a Law.



PERSONAL STATUS LAW OF KUWAIT (PSL)

Article 2 of the Constitution of Kuwait states that the religion of the State is Islam, and that the Islamic Shari’a shall be a main source of legislation. The personal status law of Kuwait, number 51, 1984, is based on Islamic Shari’a, in accordance with the Maliki school of jurisprudence. The PSL legitimizes male protection and control over women. In Kuwait, a man may divorce his wife without her consent and is only responsible for her maintenance during the three-month period of iddah.

Article 74 of this law requires the husband to support his wife. In return for her right to nafaqa (maintenance), the wife must obey her husband and rear the children. Article 88 of PSL, however, does not give the husband an absolute right to ta’a (obedience). If a wife feels that she can no longer live with her husband and her his house, a judge cannot force her to obey her husband’s demand that she returns. Under such circumstances, the wife will lose her right to maintenance and the court will support that.

Article 102 of the PSL stipulates that a husband may divorce his wife without her consent and is only responsible for her maintenance during the three-month period of iddah during which a woman is secluded in order to determine whether she is pregnant to ensure that the husband is the only father of the child. The husband, however, is required to provide her with an allowance for any children in her custody. In addition, under Article 165, if a woman is divorced without her consent, her former husband is required to pay her maintenance for one year as a compensation. This is known as nafaqat al-mut’ah.



CUSTODY OF THE CHILDREN (HADANAH)

The Personal Status of Kuwait designates fathers as the legal guardians of their children. According to Article 194, mothers may have physical custody of the children, and in the event of divorce they retain custody of male children until maturity, which is 15 years of age, and female children until they marry, but the authority over their children is significantly less than their ex-husband’s. However, the mother loses custody if she remarries.

Religious doctrines and local tradition requires that parental control over the children is left unchallenged. This means that the government does not interfere in this area.  Rather, parental authority is limitless, almost absolute. A husband may forbid his wife or daughter to work outside the home. There are no constitutional guarantees for women to employment.

Article 190 of the PSL list the qualifications of the person who has custody of the children, they include: maturity, reasonable, faithfulness, and ability to take care of the child, and keep the child healthy and good manners. Additionally, Article 191 also requires that the mother who has custody of a female child, that she would lose her custody right if she remarries a man being a relative of the child in a prohibited degree. i.e., a relative who is prohibited from marrying the female child, “if the marriage is consummated.” Article 191(b) also indicates that if the next in line for custody keeps silent for a year, without good excuse, after knowing of the consummation of a disqualifying marriage, then they lose the right to claim that custody, adding that they cannot claim ignorance of this provision as an excuse.

As to acquiring citizenship in Kuwait, Art. 2 of the Kuwaiti Nationality Law states that “Any person born in, or outside Kuwait, whose father is a Kuwaiti national shall be a Kuwaiti national himself.” The nationality of the father is therefore, the determining factor for granting a Kuwaiti citizenship to the children. In addition, Article 8 of the Kuwaiti nationality law allows the foreign wife of a Kuwaiti citizen to acquire the Kuwaiti nationality after completing 15 year of marriage.



DISCLAIMER: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific or legal advice on the information provided and related topics, please contact the author.



Gabriel Sawma is a lawyer with Middle East background, and a recognized authority on Islamic law of marriage, divorce and custody of children, Hindu marital disputes in U.S. courts, and Iran divorce in USA.

·         Professor of Middle East Constitutional and Islamic law,

·         Expert Consultant on Islamic divorce in US Courts and Canada,

·         Expert Consultant on Hindu divorce in U.S. courts,

·         Expert Consultant on Iranian Shi’a divorce in USA,

·         Expert Consultant on Islamic finance.

Admitted to the Lebanese Bar Association; Associate Member of the New York State Bar Association and the American Bar Association.

Prof. Sawma lectured at the American Academy of Matrimonial Lawyers (AAML) in New York State and wrote many affidavits to immigration authorities, Federal Courts, and family State Courts in connection with recognition of Islamic foreign divorces in the U.S., Hindu divorces, and Iranian marital conflicts.

Taught Islamic Finance for MBA program at the University of Liverpool, United Kingdom.

Travelled extensively to: Saudi Arabia, Kuwait, Bahrain, Qatar, Egypt, Sudan, the United Arab Emirates, Jordan, Syria and Palestine.

Wrote many articles on Islamic and Hindu divorce in USA, custody of children in the Middle East and Central Asia; and on abduction of children to Muslim countries; 

Speaks, reads and writes several languages including Arabic, English, French and others.

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