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

the estate assumed by the customary successor and subject to the original marriage contract
between the families. [FN112]
In patrilineal communities, as in matrilineal communities, spouses are not part of the same
lineage so a surviving wife will not inherit property from the intestate estate of her husband
under customary law. [FN113] Again, the husband's lineage bears merely a moral responsibility
to maintain the widow until she remarries, [FN114] or, in some cases, until she refuses an offer
of marriage from a member of her husband's lineage. [FN115] As a practical matter, however,
widows who have children may be somewhat better off within a patrilineal system than a
matrilineal one because their children do have a right to inherit from their father. Indeed, under
customary law governing many patrilineal communities in Ghana, children, not the wider family,
inherit property from the deceased. [FN116] Not every child automatically inherits a portion of
the deceased's estate, however. [FN117] The lineage may determine which child inherits and
how much of a share the child receives. [FN118] Although daughters may inherit, sons generally
receive preference, [FN119] especially with respect to land. [FN120] In *281 some communities,
when daughters do inherit property, they receive only a life estate in the property. [FN121]
Polygyny, both formal and informal, complicates the scenario in patrilineal communities. If
all of the children of the deceased are from the same mother, each child generally receives a
share of the inheritance. [FN122] However, children born out of wedlock may inherit, provided
the father has acknowledged paternity. [FN123] Thus, there may be more than one set of
children even in a formally monogamous union. If there are children from more than one mother,
the eldest child of each mother receives a share. [FN124] These shares are then further
subdivided among each of the younger siblings. [FN125] Often little, if any, property becomes
family property. [FN126]
For the purposes of this Report, the differences between matrilineal and patrilineal systems
are significant primarily because they give rise to different sources of conflict surrounding
distribution of the estate. In matrilineal communities, the intestate's sisters and her children (his
nieces and nephews) are the primary beneficiaries under customary law and are therefore the
most likely to challenge the widow's rights under the statutory regime. In patrilineal
communities, disputes more often arise *282 among children of different mothers and involve
challenges to the widow's portion of the estate.
4. Alternatives to Customary Marriage
Although the vast majority of marriages in Ghana are customary law marriages, for a century
now, two alternatives to customary law marriage have existed. Couples may choose a Westernstyle
“Ordinance marriage” that is governed largely by English law, [FN127] or a marriage under
the laws of Islam. Each alternative carries with it different obligations and rights.
In contrast to customary law marriage or Muslim marriage, marriage under the Marriage
Ordinance is strictly monogamous. If a man married under the Ordinance subsequently marries a
second woman, he can, in theory, be found guilty of bigamy. [FN128] Ordinance marriage
consequently carries with it a high status for a Ghanaian woman. As one commentator has
explained, “[s]ocially, there is a great deal of importance attached to a marriage under the
Ordinance. Wives of such marriages are referred to as ‘Mrs.’ and they enjoy a certain measure of
respect within the Ghanaian society. This kind of respect is not accorded to customary wives.”
[FN129]