Reforming financial guardianship in Kuwait’s Civil Code: lessons from international and regional frameworks

Abstract

The age of majority in Kuwait is 21, with the financial guardianship laws of the Civil Code determining that the inheritance or property of minor citizens is governed by a guardian. The guardian is patriarchally determined to be the minor’s father, unless absent or deemed unfit, in which case guardianship falls to the paternal grandfather, or a third choice selected by a court. Meanwhile, the Juveniles Act recognizes those under 18 as children. This leaves a citizen between the ages of 18 and 21 as neither adult nor child, unable to make independent financial decisions. Guardianship fulfils a duty of care to avoid the exploitation of young people and the excessive pressure of making life-changing decisions with a lack of knowledge or experience. However, a majority age of 21 is internationally considered outdated, with most nations positioning the age of majority at 18. Technological advances have improved access to personal financial information, leaving young people better placed to make financial choices. This article examines inconsistences in age requirements across Kuwaiti civil law and, in comparison with other legislative jurisdictions, including other GCC nations, such as Saudi Arabia, and England and Wales. The article concludes that reforms to guardianship in civil laws should align Kuwait’s law of majority with international standards.

I. Introduction

The current civil law in Kuwait dictates that people under the age of 21 are minors. They cannot take legal action and have their inherited assets managed via the principle of financial guardianship. In some situations, ‘discerning’ minors, over the age of 18, may be able to manage their own assets.¹ ‘Custody refers to the physical care and control of a minor whereas guardianship is a wider term and includes rights and duties with respect to the care and control of minor’s person and property, and includes the right to make decisions relating to the minor’.²

Many countries set the age of majority at 18,³ considering their young adults to have the responsibility and aptitude to make personal and financial decisions. Legal reform to reduce the age of majority in Kuwait, particularly in relation to financial guardianship and permitting young adults access to their inheritances, would be a positive step towards developing financially competent citizens, giving young people opportunities to invest and start businesses, and broadening the diversity of Kuwait’s economy. There is also a matter of safeguarding, as minors can experience exploitation under the ‘legal cloak of guardianship’.⁴

In Kuwait, guardianship laws⁵ (Wilāya) are governed by Sharia law.⁶ Under the current legal framework, financial guardianship adheres to patriarchal norms, designating the father as sole guardian by default, followed, in his absence, by the paternal grandfather, effectively bypassing the mother. In an era of academically educated and professionally accomplished women, the exclusion of mothers raises critical questions around women not being legally acknowledged as equally capable of serving in the role of financial guardian for their children.

II. Financial guardianship

Kuwait’s legal system has a mixed history. Until 1961, Kuwait was a Protectorate of the UK, after which Kuwait commissioned the drafting of a new Civil Code based on the French legal system, albeit with the retention of some of its previous ‘protectorate’ influence which continued for some time after Kuwait’s independence. The UK, until 1969, had a legal age of majority of 21,⁷ while France did not reform its legal age of majority to 18 until 1974.⁸ Therefore, at the time Kuwait’s Civil Code was drafted, both the UK and France had a legal age of majority of 21, which was, at that time, standard.

Significant changes have occurred since then and, while Kuwait is not alone in maintaining a higher age of majority, it is in the minority. Fifteen of 189 countries have an age of majority of 21, three of 20, two of 19, and the global standard is 18.⁹

Although the law of majority in Kuwait sets the age at 21, the Juveniles Act recognizes anyone (male or female) under 18 as a child.¹⁰ According to Labour Law,¹¹ the minimum age for employment is 18. In order to work, one is required to enter into a contract. Labour Law also permits employees the right to (collectively) negotiate. As no age limit is stated for this, an 18-year-old could organize and negotiate contract terms on behalf of their colleagues, earn a living to support themselves, and spend the money they earn, but not be considered mature enough to manage their own property and finances.

The Kuwait Personal Status Act states that children must be taken care of, with respect to guardianship,¹² and provides the ‘rights and duties of parents and legal guardians’.¹³ Financial guardianship is governed by Article 110 of the Kuwaiti Civil Code, which states that the property of a minor should be governed by the child’s father. If he is not available or capable, the father can choose a guardian. If this option is not available, the role falls to the paternal grandfather, and if that person is not available the court can appoint a financial guardian. In Kuwait, the Public Authority for the Affairs of Minors usually oversees the assets and affairs of minors. They ensure that the guardian is capable of fulfilling the role, and authorize any transactions made on the minor’s behalf.¹⁴ The law is clear that the father and paternal grandfather are legally obliged to act as guardian, unless there is a valid reason to excuse them. There is guidance on the character and background of any person to be appointed guardian to satisfy both civil and Sharia law. The guardian must be ‘just and competent’, mentally healthy, mature and responsible, free from prejudice and bigotry, and with no history of bankruptcy, ‘unless his reputation has been restored.’¹⁵ On the sad occasions when a guardian is not honourable and does not have the best interests of the child’s investment at heart, if the proposed guardian is proven to be absent, or if, during the guardianship, they are sentenced to a term of 1 year or more in prison, the court can remove that person as guardian, and, if necessary, appoint an alternative.¹⁶ The father might be responsible for only a portion of the minor’s assets and finances if, eg the child is left an inheritance and the deceased person specifies in their will that a particular person should, or should not, perform the role of guardian. It may be that they want the person to spend it in a particular way for the benefit of the child’s future, arranging for specific classes, or it may be that the benefactor does not trust, or like, the father. Again, if the benefactor specifies in their will that they do not want the father to be guardian of their portion of money, but do not define an alternative, the court is responsible for selecting them.¹⁷ If the court, or a benefactor of the child, have reason not to fully trust the father or, alternatively, consider that the child may benefit from the father taking advice or guidance, a supervisor, or mukhtar, can be appointed by the court to advise, or simply keep account of how the guardian handles the money and report back to the court. For example, if the child’s assets involve a business or property with tenants, the guardian may require specialist help to manage the running, such as maintaining profitability or the safety of workers or residents. Similarly, there is no limit on the number of guardians allowed, the only stipulation is that they must all agree on any decisions made, with the exception of the court or the father who can make solo resolutions.¹⁸ If a father with an unknown or dubious record of trust and responsibility can be made a guardian by default, why not appoint the child themselves, if they are over the age of 18, of sound mind and decision-making ability, as the guardian of their own funds, with the assistance of a mukhtar?

III. Mother as guardian

Aside from the stipulations given, and that the choice must be officially recorded, signed, and certified, the law does not specify who can or cannot be chosen by the father.¹⁹ This means that, while the mother is not automatically the first choice, despite civil equality, she is not forbidden from being the second choice of financial guardian, should the father select her. Also, should the father not be available, or alive, the court could appoint the mother as financial guardian.²⁰

The Committee on the Rights of the Child report confirms that guardianship of children between the ages of 7 and 15 is given to the father as standard; however there are exceptional occasions where guardianship and financial guardianship would be granted to the mother, if she were deemed more responsible.²¹ A 2003 case in Egypt saw a mother appeal for, and be granted, financial guardianship of her children following the father’s death, where neither the father nor grandfather had proposed an alternative.²²

Theoretically though, there are complications. The second article of the Kuwait Constitution states that Kuwait follows a civil code; however, Islamic Sharia is a source of the law.²³ Generally, no civil coded laws should contravene Islamic principles, specifically in the case of family law. Kuwaiti Muslims are legislated following Sharia. Shia Muslims are governed by Shia Family Courts applying Jafari Fiqh, while Sunni Muslims (the majority) are governed by Sunni Family Courts applying an interpretation of Sharia from the Maliki or Hanbali schools.²⁴

Gender equality is part of Kuwait’s Sustainable Development Goal 5, of Agenda 2030, with Article 5.1 intended to end all forms of discrimination against all women and girls everywhere, and 5.A intended to bring equality to: ‘Access to ownership and control over land other forms of property, financial services, inheritance and natural resources, in accordance with national laws’.²⁵ There are many areas in which equality for women is in hand. The Kuwait Government approved the World Bank Country Engagement Framework in 2021 to help achieve women’s economic empowerment,²⁶ and the oil industry, leading banks and other industries have promised women equal financial compensation for equal work, following the launch of the Women’s Economic Empowerment Platform Kuwait.²⁷ It is understood that women are equally capable of carrying out working roles, earning and supporting a family financially; however, legally, they are not recognized as capable first choices to manage their children’s finances. A woman can be CEO of a bank but is not automatically considered a financial guardian of her child.

Reform should be introduced to the guardianship laws of Kuwait to reflect civil equality and recognize women’s right to education, financial independence and professional advancement. Legal provisions should ensure that both men and women of the immediate family are equally eligible for appointment as financial guardians of minors.

IV. Necessaries

Article 93 of the Civil Code talks of ‘necessaries’. A discerning minor, or the guardian on their behalf, can extract and request funds for their maintenance and expenses.²⁸ This can include any day-to-day basics of life, survival, accommodation or education.²⁹ Less obviously, but equally a necessity, this might include a motor vehicle to enable the minor to fulfil their employment duties and earn a living.³⁰ It is, arguably, illogical that someone considered a minor is not considered mature enough to have ready access to their inherited funds but permitted the responsibility of safely driving a vehicle and pursuing a job or career.

V. Minors and contracts: Eligibility to enter into a contract

The legal eligibility of a person to enter into a contract is described in Civil Law 1980, Articles 84 to 103 and Labor Law in the Private Sector, No. 6, 2010, Article 27. Any person is entitled to enter into a contract as long as the law does not consider them incompetent to do so. Young people, along with those considered mentally unfit, are not automatically considered competent and require an exemption from this ruling by a judge.³¹ Additionally, any child of 7 years of age or younger is considered an ‘undistinguished minor’ and unable to enter into a contract, with none of their actions or decisions considered viable or liable. When appropriate, a judge can make allowances for ‘discerning’ or mentally capable children, over the age of 7, to enter into a contract.

While those between the ages of 18 and 21 can enter into a contract, it can be revoked to their benefit.³² A minor, in general, cannot take legal action, and any person under the age of 21 has their inherited assets managed via the principle of financial guardianship. However, if considered ‘discerning’ by a judge, those aged between 15 and 18 can also ‘enter into contractual agreements and dispose of any earned wages’, and ‘discerning’ 18–21-year-olds may manage their own assets.³³ Fifteen- to 18-year-olds can freely enter into employment contracts for an indefinite time period, but fixed term contracts can be for no longer than a year.³⁴

A ‘discerning’ child is recognized as capable of making decisions, implying that they understand the consequences and outcome of their actions. They are deemed capable of making legally valid actions for their own benefit, while any harmful actions are void in terms of liability, unless found to be done purposely in order to enact this quarantine. There may be occasions where the court decides to validate a minor’s behaviour.³⁵ The law allows for the court to grant a capable, but behaviourally immature, 15-plus minor the opportunity to control their finances, with restrictions such as a regular submission of spending or financial/property movement.³⁶

A child’s guardian is permitted to give a ‘discerning’ child between the ages of 18 and 21 ‘absolute’ or ‘restricted’ control of their finances.³⁷ Any alterations to permissions must be obtained, via official certificate, from the Department of Minor’s Affairs (DMA),³⁸ and permission is retractable.³⁹ However, should guardianship be revoked or transferred to another person, the child’s permission to manage their money is respected and upheld.⁴⁰ In situations where a guardian does not permit a minor freedom to manage their finances or property, the minor can submit a request to the DMA. If the request is denied, a second request can only be made after one year from the ruling date.⁴¹ While a minor can manage their finances and property, within any restrictions applied to their case, they must wait a year, after the judgement, before renting out any property.⁴²

If the child requires physical aids to assist with a disability, eg a visual or hearing impairment, the court may provide a judicial aid for a month, to ensure he or she is able to fully understand any contractual conditions.⁴³

VI. Liabilities and other contracts

It is pertinent to compare instances of liability and contracts in terms of how the youth of Kuwait are treated, in situations where there is a requirement for responsibility, understanding, and maturity: owning a home, employment, marriage, and criminal liability.

1. Age of criminal liability

Children between the ages of 7 and 15 cannot be sent to prison.⁴⁴ It is recognized that children under the age of 15 are vulnerable and (except for crimes punishable by death or life imprisonment) rather than being punished for their offences, should be protected from the negative influences or harms which led to their committing the offence, with an aim to rehabilitate.⁴⁵ In addition to other measures, a judge can deliver the juvenile into the hands of a guardian. As previously mentioned, children under the age of 7 are not liable for their actions and therefore not liable for prosecution.⁴⁶

2. Employment

Kuwait has, over the years, reformed its law to improve the lives of minors, ensuring legislation adheres to, and is in line with, the United Nation’s Convention on the Rights of the Child. This includes legislating the minimum legal age limit of employment at 15 years.⁴⁷ The rights of children are reviewed by the High Council for the Family, which aims to promote healthy laws which protect children.⁴⁸ Here, the minor is legally permitted to spend his or her wages, provided they keep the spend within what is earned, although the courts can intervene at the request of the guardian or DMA if they believe it necessary.⁴⁹

3. Other situations

Those of 18 years and above can execute their own will, according to Article 95 of the Civil Code.⁵⁰ Those aged 15 years or above of a discerning or sound mind can, if the court is in agreement, bring their own legal cases.⁵¹

The Law Reform Commission states:⁵²

A person who is fit to manage his own affairs and who is fit to serve on a jury, to make a will and to vote should, in the Commission’s view, be responsible enough to enter into a marriage contract without requiring the consent of any person or tribunal… if there is to be a free age for marriage in addition to a minimum age for marriage, it should be the same as the age of majority. If… the age of majority is fixed at 18 years, then a person who reaches that age should at the same time reach the free age for marriage.⁵³

Children ought to be protected, and this is what the age of majority is designed to do, but it requires a fair and sensible compromise between ages. At 15, a child is not likely to have the worldly experience or education to understand financial policy, business, or investment sufficiently to make sound financial judgements, but should not be expected to give up education or a career to be responsible for another life.

4. Financial literacy and lack of opportunity

In today’s digital era, financial transactions, asset management, and payments are predominantly conducted online. The way individuals interact with stocks, shares, and personal assets has evolved significantly, with digital finance becoming the norm. As early as 2017, 75 per cent of payments in Kuwait were made digitally.⁵⁴

Young people, having grown up in a fully digital environment, are well-versed in online banking, digital transactions and financial software—arguably placing them in a stronger position to navigate modern financial systems than many older adults. Traditional assessments of young adults’ financial capacity may therefore be outdated, particularly concerning digital assets, whether inherited or independently acquired. Given the rapid transformation of financial management, the ability of adult guardians to effectively guide younger generations may be limited without additional support or training.⁵⁵

A critical issue compounding this challenge is a lack of financial literacy education. The Institute of Banking Studies reports that ‘no GCC country includes key aspects of financial literacy in its basic education program’.⁵⁶ This is not merely regional. The OECD claim that 1.2bn young people globally, aged between 15 and 24 years, do not have their own bank account.⁵⁷ While the number of young people who do their own banking in Kuwait is on par with its GCC neighbours, at 63 per cent, and high compared to the global 45 per cent, it sits significantly below other high-income nations, at close to 84 per cent.⁵⁸ This gap reflects low financial literacy, which is particularly concerning given that Kuwait has higher levels of young people borrowing money,⁵⁹ with the financial savings of both adults and young people being 10 per cent lower than other high-income nations. Many rely on private lenders, often incurring high interest rates, and this pattern of borrowing, coupled with inadequate financial education, increases the risk of long-term financial instability, underscoring the urgent need for improved financial literacy and responsible financial management education.⁶⁰

The Central Bank of Kuwait is implementing plans to improve national financial literacy.⁶¹ Of 502 SMEs in Kuwait surveyed by the World Bank, 24 per cent say that people are not sufficiently educated, while a consultant working for SME Fund applicants says that a large number have little business acumen.⁶² A failed Kuwait Small Projects Development Company was restructured in 2010 and, along with Kuwait’s National Assembly, implemented a 4-year development plan to invest in SMEs. Young Kuwaitis found this insufficient, and the National Fund for SME Development was launched in 2013, in partnership with the World Bank, with a relatively young board, to improve business education, instil an ‘entrepreneurial mindset’ in graduates, and provide government support for startups.⁶³ In 2017, the National Assembly of Kuwait City acknowledged the continuing ‘issue of the perceived lack of business opportunities for youth’.⁶⁴

If young people are to access their inheritance, property, and finance, they require, first and foremost, the financial acumen to do so, or guidance from specialists, as the average adult Kuwaiti also does not have good financial literacy. Secondly, they must have opportunities to invest their finances, facilitated by the government easing the processes for young entrepreneurs and small business startups.

VII. Exploitation

It is essential to maintain a balanced perspective, considering the underlying rationale for the legal age of majority. As the Irish Law Reform Commission states, ‘the limitations on the legal capacity of a minor are not imposed to deprive the minor of his rights, but rather to protect him against his own inexperience and improvidence…⁶⁵ and from the actions of others’.⁶⁶ Several factors might justify a higher age of majority, including the safeguarding of young individuals’ right to pursue higher education and protecting vulnerable youth from exploitation by guardians, family members or peers. In order to provide protection to minors (those below the age of 18), only two types of contracts are permittable under Kuwaiti law: contracts for necessaries, as discussed, and beneficial contracts of service, again where the service is necessary rather than a luxury.⁶⁷

One concern about lowering the age of majority is that those still in full-time education would receive parental or guardian maintenance.⁶⁸ If those between the ages of 18 and 21 do not have a bursary or inheritance but rely on parental or guardian support to cover costs of living while in education, that should be protected. Of course, in cases of inheritance, those costs would be covered as necessaries, assuming the inheritance were sufficient.

Witczak explores the matter in reverse, asking what happens to the inheritance of minors when the testator’s parents ‘seriously violate the child’s interest or grossly neglect parental obligations’.⁶⁹ One likely reason for maintaining the guardianship of male family members is to prevent property/inheritance being exploited in the situation of a mother remarrying under Sharia and having less financial control over her own wealth. It would be easy, in this circumstance, for a new husband to exploit the child’s inheritance and manipulate or abuse power over the child or mother.

A report into the financial exploitation of women in Kenya, although a different geographical, cultural, and legislative region, describes many instances of women being stripped of control over their inherited property, livestock, and belongings following their husband’s death, generally by in-laws.⁷⁰ Witczak explores Polish law and asks why neglectful parents, court-sanctioned to remove parental authority, still have a right to intestate succession from the children they neglected, an example of how laws aren’t always fair to the child.

Another matter concerning general welfare is not overburdening young people by pressurizing them into making life-defining decisions without the necessary knowledge, experience, and capacity to do so. While young people are growing up alongside artificial intelligence, and its capabilities are developing rapidly, it does not yet comprehend the complexities of legal and financial matters sufficiently to provide reliable advice and evaluation. There are also questions of practicality, such as, if a young person takes over ownership of a property, do they have the financial capability to pay for insurance, repairs, legal fees, etc, highlighting the necessity of ensuring financial readiness before granting full legal and financial independence.

VIII. International legislature: Europe and the GCC

1. England and Wales

Despite cultural differences and a difference in legal system, with England and Wales being common law countries rather than civil law, and without the influence of Sharia, it is worth examining the progression and reasonings of reforms to the age of majority, given their influence and the extensive literature on the subject. In 1965, the UK (within which, England and Wales is one legal jurisdiction) and the Republic of Ireland (Eire) both recognized the age of majority as 21. A minor with no guardian could enter into a contract, but the contract would only be legally enforced if it were advantageous to the minor.⁷¹ This is not dissimilar to current Kuwaiti law, where 15-year-olds of sound mind can be granted permission by the courts to agree contracts and make enforceable decisions (as long as they are for his or her benefit). In 1969, the UK reformed the minimum legal age from 21 to 18.⁷² A committee had stated that the reasoning behind the selection of 21 was outdated and no longer relevant. The age change included the legal ‘power to hold and dispose of property’.⁷³ The UK was also the first democracy to lower the age of political voting to 18 in the Representation of the People Act 1969.⁷⁴ (Scotland and Wales have since lowered the voting age further to 16 for Scottish and Welsh Parliamentary, and local elections.)⁷⁵

The Law Reform Commission included questions regarding the age of majority in a questionnaire posed by the Council of Europe. The information gathered was used to formulate guidelines and Resolution (72) 29 on the lowering of the age of full legal capacity adopted by the Committee of Ministers on September 19, 1972, and the Explanatory Memorandum on the lowering of the age of full capacity (Strasbourg 1973), which suggested fixing the age of majority at 18.⁷⁶ Many other countries followed in the 1970s.⁷⁷

The UK Parliament of 1965 commissioned a report to investigate the impact of lowering the voting age from 21 to 18, including how this might affect other laws based on the age of majority.⁷⁸ In the resulting Parliamentary debate, the Home Secretary, Michael Stewart, spoke of how male children were physically maturing earlier than in previous years⁷⁹ and that there was evidence to suggest that mental, physical, and emotional maturity all increased hand in hand. He stated:

young people are very much more aware of all the things going on in the world, of all the things that there are to form opinions about and all the sources of information. We live in an age in which many more subjects are frankly and fully discussed than was the case in the past.

The availability, even then, of television, books and travel allowed young people to be better informed and more capable of forming opinions and decision-making. Stewart points out that 18-year-olds were willing to put aside immediate earnings to study in higher education, give up time to volunteering and had high awareness and care of social justice; essentially that they were mentally and emotionally mature enough to make considered judgements and decisions.⁸⁰ He suggests that the rights of ‘young people at the age of 18 to own land, to fill the position of trustees, to make their own wills, to get their own passports’ should be universal.

In contrast, Johnson and Sherraden found, in 2007, that many children, particularly those from economically disadvantaged backgrounds, lacked the financial literacy to effectively manage a large financial income or property inheritance, or indeed find the appropriate services to help them do so.⁸¹ The Internet and the development of AI have vastly increased everyone’s access to information, on any topic. Video tutorials explaining financial concepts and giving financial advice are easily accessible and widespread. Modern children are well placed to find information independently. However, finding honest, accurate information and fully understanding ‘financial policies, instruments and services’ and their affect, for a minor who has not previously survived economically independently, is much more difficult. This is something that can, and should, be addressed by education and public promotion. It is unlikely that a person of 21 would better understand the financial policies that affect him or her and their business decisions, than a person of 18, as most have limited life experience. Schools have a social responsibility to ensure that pupils leave with a good understanding of practical maths, which is relevant to life. Appleyard and Rowlingson suggest that care be taken to cover such subjects with ‘diversity and sensitivity’, taking into account that families have different financial backgrounds (regardless of appearance) and, in order to make the educational content relevant and practical, it ought to cover various circumstances.⁸² For those who have left education, short courses could be run as a public service, either online or in person at local libraries, colleges, mosques or other places of worship.

During the Age of Majority Report debate, UK Member of Parliament (MP), Sir John Hobson, stated that whilst he did not agree with the lowering of the age of majority, he did acknowledge the disparity in the maturity, knowledge, and interests of people between the ages of 17 and 22.⁸³ This is problematic. One person may be very mature and make excellent choices based on good reason and research, while another may spend their time racing cars with their friends with no time or care for civil duty.⁸⁴ Of course, this applies to people in general and their differing interests and care for civic duty and government, rather than based on age. Indeed, nearly 40 per cent of Kuwaiti nationals who are permitted to vote did not turn out in the April 2024 election,⁸⁵ despite prompting from the Minister of Social Affairs and the Emir.⁸⁶

During the UK debate, William Robson (MP) suggests that 18-year-olds having the right to vote is not a poor option;⁸⁷ if they are mature enough and proactive enough to apply, they are likely mature enough to vote. He proceeds: ‘If we are to accept that people can enter into matrimony of their own free choice at 18 it must follow that they should be able to enter into other contracts’.⁸⁸ He provides a story of a new bride who took out a conveyance on a house alone (in 1967) and, when this was queried, it was discovered that the groom was a month younger than the 21-year-old bride and so, while he could legally enter into a contract to marry, he could not enter into a contract to buy a house.⁸⁹

It seems illogical to have one age of majority for some contracts and another for others. For example, in many Arab countries, a young person can legally marry, and therefore legally bring a child into the world, but cannot legally use their own funds to purchase a house to provide for their spouse and child without the permission of a guardian. James Davidson (MP), during the 1967 debate, makes the excellent point, that ‘if a young person is given responsibility, he or she will normally take it, but withholding it is an invitation to irresponsibility’.⁹⁰ He states that, if they do not have maturity at 18, they are unlikely to suddenly have developed it by 21.

2. Reforms to custody and guardianship in the GCC

Möller describes the challenge of women’s rights and how it has positively impacted custody law (hadana) across the Arab world, while similar progress has not been seen in guardianship laws (Wilāya).⁹¹ In most Arab countries, both custody and guardianship would, in the past, have been governed by Sharia. However, divorce and parental separation have become more common and,⁹² families also more often live apart for economic reasons. Especially with COVID-19, more emergency medical care requires urgent authorization,⁹³ and it has become necessary to reform custody laws to provide women with greater power to make decisions about their children in the absence of the father. Custody laws have, therefore, begun to be codified, with various iterations. Alongside broader advancements in women’s rights, significant legal reforms have taken place across the region. For example, Saudi Arabia relaxed its adult guardianship laws in 2019, allowing women over the age of 21 to obtain passports and travel without the written consent of a male guardian. Furthermore, women were granted the right to choose their place of residence, rather than the legal residence of a married woman being that of her husband.⁹⁴ It should be noted that changes in 2022 to the Personal Status Law amended this so that both spouses must agree if they are not to be cohabiting, in other words the woman must have permission. Her financial support is dependent on her obedience to her husband in a ‘reasonable manner’. The 2016 and 2019 amendments to the law allow women to obtain passports and other official documents for their children, without a male guardian’s consent.⁹⁵

Möller explains that guardianship (Wilāya) does not necessitate the significant reform that custody has seen, simply because it is a ‘permanent right’,⁹⁶ not dependent upon whether the parents remain as a family unit. Many older laws (relating to both custody and guardianship) contain broadly worded legal articles that allow for judicial ruling and discretion, on a case-by-case basis, depending on the child’s best interests.⁹⁷ In practice, legal reforms take place even in the absence of formal codification. Indeed, in some instances, the codification of laws has, in itself, led to a rigidity in legal practice. Pre-coded legal systems allow for laws to be applied at a local level, with judgements interpreted for the circumstance at hand.⁹⁸

Möller references both Tucker and Merriweather, who conclude that, historically, under Ottoman rule (1800–1900s), it was common for dying men in Syria and Palestine to transfer financial guardianship of their children to their mothers, irrespective of the availability of responsible male family members, and, if the father did not, the court would intervene and apply that provision.⁹⁹ It was not until Al-Sanhuri’s codification of civil law in Egypt that such a heavy patriarchal emphasis was placed on guardianship, removing mothers as default guardians in the event of a father’s death.¹⁰⁰ More modern legal reforms in Algeria, Morocco, and Tunisia ensure that mothers are automatically designated next in line for guardianship after the father.¹⁰¹

While equal gender responsibility may not be fully incorporated into guardianship laws, some nations in the GCC and neighbouring regions have adapted their legal frameworks to lower the age of majority. However, Kuwait, Bahrain, Egypt, and the United Arab Emirates continue to uphold the higher age threshold of 21.¹⁰²

3. Modern cases in the GCC

Privacy laws do not always permit the publication of family cases in the GCC region, so it can be difficult to acquire examples which demonstrate the practical application of the law. An interesting case from Saudi Arabia shows that the court can support women who challenge fathers in a guardianship role if they are not managing their ward’s finances in the best interest of the child. In a case filed at the General Court of Riyadh in 2011, the child inherited real estate and other assets from a relative who passed away. The father, who became the financial guardian, proceeded to sell some of the assets, without seeking judicial authorization. The mother, the legal custodian of the child, sued the father in an attempt to nullify and invalidate the transactions made by the father, claiming they were not in the child’s best interests. The court concurred, nullifying the unsanctioned transactions.¹⁰³

The Personal Status Law, which codifies guardianship and other aspects of family law in Saudi Arabia, was updated in 2022. It specifies that the guardian must present to the court the necessity of the transaction, its benefits, and likely financial outcome to receive judicial authorization. The guardian must maintain clear records of transactions for the court’s scrutiny or to be challenged by the minor upon reaching the age of majority.¹⁰⁴ In Saudi Arabia, the age of majority is 18 years; however, amendments to the Civil Procedure, Art 244, 2020¹⁰⁵ allow this age to be adjusted upwards should the guardian request it or if further guardianship is required in the minor’s best interests. This seems a reasonable amendment and would be sensible for Kuwait to follow, a legal reform to adjust the age of majority in financial guardianship down to 18, with the ability to extend guardianship, should it seem necessary.

A case from the United Arab Emirates in 2015,¹⁰⁶ involved a maternal grandmother and paternal grandfather both filing for financial guardianship over their granddaughter, who had tragically lost both parents and, as a result, inherited financial assets and real estate. The grandfather claimed financial expertise as well as the right under Islamic law, while the grandmother claimed a close relationship with the child, having raised her since birth. The court held that the grandfather had demonstrated financial acumen and the ability to manage assets; however, any transactions made on behalf of the minor would require court authorization to prevent exploitation, while the grandmother was granted custody of the child. In this case, while the ruling did follow Sharia, it was made with the best interests of the child in mind.

A 2023 case in Kuwait saw the Public Authority for the Affairs of Minors (PAAM) challenge a family’s claim of inheritance on a house. PAAM was acting as guardian for a minor, whose father had passed away. Prior to his death, the father had drawn up a contract to transfer ownership of his house to his wife and children. However, PAAM believed that the inheritance should be withdrawn, as it stood against usual inheritance procedures. The Court of Appeals, on the other hand, held that the contract was concluded prior to the father’s death and therefore did not count as inheritance.¹⁰⁷

4. Young people and innovation

Entrepreneurial endeavours are ‘a dynamic process of wealth creation, economic growth, technological development, and social progress’.¹⁰⁸ The Ministry of State for Youth Affairs in Kuwait has, for the past few years, focussed on empowering young people alongside the United Nations Development Programme.¹⁰⁹ There is a strong push to support entrepreneurship and encourage innovation, and removing barriers such as the high age of guardianship aligns well with these plans. Hindering young people’s access to their own funds is a bottleneck for entrepreneurial growth. However, a lack of appropriate training in entrepreneurial skills and management are major factors holding young people back. Young people can still invest their money, albeit only with their guardian or a court’s agreement. Additional time until the money becomes available could encourage young entrepreneurs to hone the details of their ideas and learn business, management and entrepreneurial skills. Markets, however, are volatile, and small business ideas can be time-sensitive. Holding back on a business because a guardian does not believe in the vision could risk the project failing. Providing young people with access to their funds, while ensuring they know how to use them, would seem the better choice.

IX. Proposed reforms summary

• Provide civil law protections and reduce the age of majority and guardianship in the civil code to eighteen, or as a minimum, reduce the age for inheritance and succession laws. Include sub-articles in the reforms to allow protection of vulnerable individuals, on a case-by-case basis.

• Ensure financial literacy is part of the national education syllabus.

• Ensure financial literacy courses and resources are available for all adults across all social and educational levels.

• The civil code should be reformed to include financial guardianship laws which place mothers and other female family members with equal priority and capacity as fathers and male family members.

X. Conclusion

Young people have far greater access to financial information than ever before. There are more trustworthy reviews of services available, and today’s youth have a higher level of maturity, are generally more ‘savvy’ and have good technical capabilities. This enables them them to competently explore and compare options online, ultimately managing their finances independently within the framework of Kuwait’s civil law, and in alignment with international civil law norms. Maintaining financial guardianship for under 21s seems outdated, and reducing Kuwait’s age of majority to 18 would align with global, civil law (and common law) practices, which have been in place since the 1970s. The majority of nations, and many civil law systems, legally recognize individuals of 18 years of age as capable of understanding the consequences and responsibilities of exercising their rights and making significant financial and personal decisions. This includes voting, entering contracts and managing finances, reinforcing the argument for Kuwait to modernise its approach.

Providing civil law protections and trusting Kuwait’s young adults to make their own decisions and to seek support as and when required would empower them, encouraging a sense of responsibility and independence. It would foster the involvement of this age group in higher education, finance, and entrepreneurship. While the current age of 21 does protect young people from exploitation and duress, modern youth are capable of managing their assets, or seeking appropriate support and advice. As such, in line with many civil law systems, the age of majority and guardianship should be reduced to 18.

Courts should assess individual cases where a person over eighteen may be vulnerable due to mental incapacity or external exploitation, according to civil law doctrines regarding legal capacity. Blanket restrictions assuming financial incompetence at eighteen are not justified under modern civil law approaches, which prioritize individual evaluation over broad legal presumptions. It cannot be assumed that adults necessarily understand how to manage assets better. If the national consensus is against lowering the age of majority at this point in time, reforms could be made solely to first target inheritance and succession laws, to allow today’s more knowledgeable and mature young adults more control over inherited assets, in line with civil law systems.

It should, be mandated into civil law that young people have the taught skills to capably and confidently understand Kuwait’s financial policies and services, ensuring that financial literacy be included in the educational curriculum of all 16 and 18 year olds. Financial literacy needs to be practical, it would therefore be beneficial to pair it with business management and entrepreneurial skills in the curriculum. Support should also be provided for financial literacy for parents and guardians and those outside the standard education system know how to make their own and, support young people’s, financial decisions, also alighing with civil law principles that emphasize informed consent and decision-making capacity. Nationwide financial literacy can promote equity, economic development, and responsible investment, strengthenin Kuwait’s civil law approach to financial governance.

Further reform is proposed with regards to a mother’s right to be considered a primary financial guardian, with equal standing to a father, consistent with evolving civil law interpretations that recognize gender equality in legal and financial matters. The socio-economic structure of Kuwait has changed dramatically over the past forty years. Many women work, provide financial support and contribute to the financial running of the home. Given the percentage of women in higher education in Kuwait, they are equally, if not more, capable of fulfilling financial guardianship responsibilities, a stance that should be reflected in Kuwait’s civil law framework. Mothers and other women of the family should be given status equal to fathers and other male family members, with regards to selection as financial guardians for minors aged 18 and under. Guardianship laws should be reformed to reflect this.

In summary, the findings suggest that reducing Kuwait’s financial majority age to eighteen would empower youth, align with civil law standards worldwide, and encourage financial independence. If immediate change is not feasible, gradual reforms within the civil law system—such as amendments to inheritance laws—should be considered. Furthermore, enhancing financial literacy and recognizing mothers as equal financial guardians under civil law are essential reforms to ensure a modernized, equitable, and financially competent society.

Funding

There was no funding provided for this study.

Conflict of interest statement: There are no conflicts of interest.

Footnotes