Law, Culture and Women's Inheritance Rights in ... - Leitner Center

collect and, because he has no child, the money would go to the widow. He explained that,
especially in cases where a woman does not have children, the man's family will object to the
widow's inheritance and may deliberately frustrate application of *307 the law. [FN242]
Although in Justice Owusu's case, the widow is likely to prevail based on the photographs
and other evidence, the family's objections have the effect of delaying the administration of the
estate. Widows lacking such proof are in an even worse position and must rely on conflicting
assertions about the status of customary rites. For example, Mrs. Ellen Asiedu Akrofi Sowa,
Regional Director of the Legal Aid Board for the Western Region, described a case in which,
immediately upon the death of the man, his family sent drinks to the wife's family to notify them
of the death. [FN243] According to Mrs. Sowa, the sending of drinks indicated that the man's
family viewed the widow as a wife at the time of the intestate's death. His family has since
reversed its position and is claiming that the widow was not a valid wife. The family initially
tried to take the drinks back. Having failed, they now claim that they sent drinks on behalf of the
man's children, not the wife. Mrs. Sowa noted, however, that if such were the case, they had no
reason to attempt to recover the drinks in the first place. [FN244] This case illustrates the
difficulties in factfinding that may attend the determination of marital status given the
informality of customary rites.
These problems of proof would not have arisen if the couples in these cases had registered
their marriages. Yet, as a practical matter, it may be difficult or impossible for most women,
especially in rural areas, to take advantage of the existing registration process. [FN245]
Registration requires application to the Registrar of Marriages in the District in which the
marriage takes place. To register, the woman must first be aware of the availability of the
procedure. She must also have the means to compile the necessary documentation, including
signatures of parents or other witnesses. This may be beyond the capacity of women*308 who
lack basic literacy skills. Finally, she must have the ability to travel to the District office of the
Registrar. In addition, although the statute permits either party to register the marriage, many
women believe that they need their husband's permission to do so. [FN246] Many men hesitate
to register marriages, believing incorrectly that doing so will limit them to one wife. [FN247] For
these reasons, the existing system of registration has failed to address the problems of proof with
respect to customary marriages.
b. Incomplete Customary Rites
As noted above, the second context in which the family often contests marital status arises
when a man and woman lived together as husband and wife and held themselves out to the
community as such, although the customary rites were not fully performed before the death of
the man. [FN248] This may happen for several reasons. The marital rites take place in two to
three stages and a couple may begin to live together and even have children before the final stage
is completed. [FN249] In some cases, the man may have promised to perform the customary rites
in *309 the future and later simply neglected to do so. In others, the man may have chosen not to
perform the rites deliberately as a way of exercising power over the woman who has become
economically and emotionally tied to him. [FN250] In yet other cases, the family may have
refused to perform the full rites required. [FN251]
For example, in the village of Kwanfifi, in the Ashanti Region, the delegation met with a
number of women who lived with men, had children with them, and were treated as “wives” by
the community, although the families had not fully performed the customary rights. Indeed, Ms.