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

largely excluded spouses. [FN35] This regime was radically altered in 1985 by a statute intended
to protect more fully the interests of spouses, particularly widows. [FN36]
Despite this statutory change, an understanding of the structure of family systems in Ghana
and the customary law governing marriage, property rights, and succession is essential to an
appreciation of the problems facing Ghanaian widows today. This is true for three reasons. First,
under the current statutory regime, *269 customary law still dictates the distribution of a part of
the estate. [FN37] It also governs both ownership of property acquired during marriage, [FN38]
and the composition of the inheriting group, including who counts as a legal spouse. [FN39]
Second, to the extent that people lack knowledge of the law or the resources to enforce it,
customary law still governs the distribution of estates. Third, even when the statute is wellunderstood,
the persistence of longstanding expectations and social practices informed by the
customary law of intestate succession has given rise to many of the problems in enforcing of the
statute.
This Part begins by describing briefly the basic family systems in Ghana as well as
customary law governing marriage, ownership of property, and intestate succession. It then
describes the statutory scheme enacted in 1985 which substantially altered the system of intestate
succession. This Part thus provides a foundation for Part III's analysis of the problems widows
face in claiming their rights under the statutory scheme.
A. Law Governing Marital Property and Inheritance prior to Law 111
1. Family Systems in Ghana
In Ghana, “family” refers to individuals related by blood rather than by marriage, the lineage
being traced either through the female line (matrilineal) or the male line (patrilineal). [FN40] The
term “family” may also be used to describe the nuclear family; however, in Ghana, spouses are
not regarded as related to each other as under a Western conception of the family. [FN41]
Moreover,*270 historically, the importance of the extended family or lineage as a social
institution far exceeded that of the nuclear family. [FN42] Indeed, even today, the lineage may
be “the most important social institution in Ghana” because it:
constitutes the pivot around which the political and socio-economic organisation of society
revolves. . . . It determines [one's] beneficial enjoyment of rights in land and other moveable
property. It may also affect generally [one's] rights of succession to hereditary office in the
hierarchy of political organisation within the traditional system. [FN43]
Two types of lineage systems exist in Ghana, matrilineal and patrilineal, and each person in
Ghana belongs to one of these systems. [FN44] Although significant differences exist between
matrilineal and patrilineal systems, they share many characteristics important to the analysis in
this Report. This section provides a general introduction to the family in Ghana, emphasizing
these shared characteristics but noting where family systems diverge in ways significant to
women's inheritance rights.
The lineage consists of all persons, male and female, who are descended in a direct line from
a common female ancestor in a matrilineal system or a male ancestor in a patrilineal system.
[FN45] The major ethnic groups in Ghana that adhere to the matrilineal system are the Akan
(except those elements found in the Volta region and Jasikan District), the Lobi, the Tampolese,
and the Vagala or Baga, which are found in the Upper East and Upper West Regions. [FN46]
The Akan are the largest of these groups *271 and are concentrated in southwestern Ghana.