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Friday, March 31, 2023

Can a widow marry her husband’s brother?

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Dear Mirror Lawyer, Can a widow who is not in love with the brother of her late husband be forced to marry him or the customary successor of his deceased husband?

Kuukua, Winneba
 
Dear Kuukua, Customary law is the ongoing practices of people in a particular community which over time has crystallised into law.

According to the Constitution, such customs which have been acknowledged as lawful practices are part of the laws of Ghana and are applied and given effect to by the courts. One of such customary practices we experience in various communities is death, inheritance and disposal of a deceased person’s estate. 

Some of these customs have been refined to suit modern societal practices and unified by legislation and now applicable to the entire country irrespective of what views or customary practices were practised in the past by communities.

One legislation which has made inroads into customary practices and unified the law on Intestate succession across the country is the Intestate Succession Act of 1985, PNDC Act 111.

As a general rule, courts have been very reluctant to substitute their opinion for what customs and practices of communities should or should not be observed unless the custom or practice is contrary to a mandatory provision of statute or contrary to natural justice, equity and good conscience. Thus, in the case of Tanor v Akosua Korkor [1974] GLR 451, according to Krobo custom ,a female who reaches the age of puberty must undergo a customary rite called dipo before becoming pregnant.

If she conceived before undergoing this ceremony, she was not only ostracised but was liable to be banished from home and disowned by her parents.
 

Korkor was banished from Kroboland as a result of this custom and was adopted by a man from Akim Abuakwah. Issues of Korkor’s inheritance after the death of the man ended up in court and in the course of the case, counsel for Korkor invited the court to condemn the dipo custom of the Krobos as harsh and contrary to good conscience.

The Court of Appeal held that to banish a teenage girl from home and to compel her parents to disown and disinherit her seems out of step with modern notions.
 

However, whether the custom should be abolished or not, is not a matter for the courts but for the Krobos themselves. 
Archer J (as he then was) was faced with the issue of a customary successor marrying the widow of a deceased family member in the case of  re Kofi Antubam (Decd.); Quaico v. Fosu [1965] GLR 138. After reviewing the custom and legal text, writers such as Sarbah, Archer J held as follows:

“I propose to stress that certain concepts, notions and conditions which prevailed when Sarbah wrote his book no longer prevail.

For instance, the successor has to maintain the children as if they were his born children and also to marry the widows of the deceased. In other words, the successor inherits the children and the widows as if they were inheritable chattels. Today, women have attained a status equal to men with the right to decide for themselves their suitors or consorts in marriage and even to struggle to maintain their infant children during widowhood”.

 We are in an era of rights, freedom of choice and emancipation of women. The Constitution guarantees rights of all persons to self-determination.

The concept or notion that the successor of a deceased who died intestate has to maintain the children of the deceased as if they were his own children, and also to marry or inherit the widows, as if they were ‘inheritable chattels’ no longer prevails, if we were to measure such practices against the 1992 Constitution.

However, some communities still hold on to some of these customary practices. Archer J says that if customary law is to retain its place as the greatest adjunct to statutory law and the common law, then it must not remain stagnant while other aspects of the law are in constant motion.

Customary law must progress and develop in accordance with the tempo of social, commercial and industrial progress, and customs which appear to be repugnant to natural justice, equity and good conscience must be gradually changed by the communities.
 

We need visionary leaders in the communities to constantly monitor this and recommend appropriate revision to bad customs and practices. Where this fails, the legislature will intervene to correct the practice and impose the changes on the people.

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