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

husband's family denies her status. Despite Essilfie v. Quarcoo, if customary rites were not
performed, or not fully performed, a widow is often prevented from inheriting under the statute
even though she lived with the man as his wife, had children with him, and was treated as his
wife by his family and the community. Although this situation arises for both widows and
widowers (as in Quarcoo), the consequences for widows are more severe given the widespread
assumption that property acquired during the marriage belongs to the man. As a result, widows
more often than widowers, must rely on intestate succession to establish ownership of property
to which they have made an economic contribution. A systematic failure to protect the interest of
spouses in intestate succession therefore violates Ghana's international obligation to ensure
gender equality.
*312 The following recommendations are intended to facilitate proof of customary law
marriages by surviving spouses.
1. To reduce problems of proof by facilitating the registration of customary law marriages,
Law 112 could be amended to provide for a dual system of registration. Under such a system, an
individual would still be able to register with the Registrar of Marriages, as currently allowed
under the statute. In addition, however, local registration would be permitted.
A dual scheme for registration is not unprecedented. Section 121 of the Children's Act, 1998
(Act 560), provides that the District Assembly shall be responsible for registration of births in the
district but that: “[t]he District Assembly may delegate any of its functions under this section to a
Unit Committee or to such other person as it may determine to be appropriate.” [FN262] We
recommend that Law 112 be amended similarly to allow the District Assembly in each district to
delegate the marriage registration functions to an appropriate local body or local official. That
local body or local official would then be responsible for forwarding the marriage registrations
periodically to the Registrar of Marriages.
We recognize that local registration of customary marriages presents its own problems. For
example, some suggested that local registration be delegated to chiefs or queenmothers.
According to Chief Dasebre Osei Bonsu II, Omanhene of Mampong Ashanti, who supported
local registration, “We [chiefs] have good secretariats and we are at the grassroots [level], so our
offices are accessible to most of the womenfolk so why not permit . . . [the] secretariats to
register marriages.” [FN263] Others objected, noting that allowing chiefs to control the
registration of marriages might unduly enlarge the powers of chiefs and encourage corruption.
[FN264] The District Assembly, however, *313 would have the power to delegate registration
authority to any appropriate local body or official. For example, it could designate a local
attorney, assemblyman, pastor, or the head-teacher of a local school. The District Assembly
would retain supervisory control over the registration process and could correct any irregularities
that might arise. Moreover, the current system of registration would be available as an alternative
if local registration proved problematic in a particular case.
If this recommendation were adopted, it would require amending § 2(1) of Law 112 to
provide:
Where a marriage has been contracted under customary law, either party to the marriage or
both parties may apply in writing to the Registrar of Marriages (referred to in this Law as “the
Registrar”) of the District in which the marriage was contracted, or in person to any such person
to whom the District Assembly has delegated registration functions in that District, for the
registration of the marriage in the register of marriages in this Law referred to as the “register.”
2. Law 111 should be amended to recognize customary law marriages where the customary
rites have not been performed but where certain conditions are met.