Bentsi-Enchill, K.

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PA RT 3
LEGAL STU D IES
la  this section three discussions of family law highlight some of the m ajor themes which 
have held the attention of would-be law reformers, as well as laymen and researchers in G hana for 
several decades. First the late Professor Bentsi Enchill looks at the conflict inherent between 
the traditional view of the fa m ily  as a lineage segment, in which ones spouse belongs to a diffe­
rent fam ily  and the contem porary situation in which it is often man and wife who are throw n 
together to manage an urban household on their resources in money and time and to rear 
their dependent children. The point is clearly made that the custom ary law on many accounts 
denies the unity and individuation of the conjugal family. Professor Bentsi Enchill refers to the 
potential effects o f such pressures upon conjugal and filial relationships—an im portant theme 
for research touched upon in several contributions to Legon Family Research Papers No. 1.
In chapter 8 Maxine Kum ekpor examines some of the implications of the M atrim onial 
Causes Act 1971. She makes the point that virtually all marriages contracted between G hanaians 
are first and foremost custom ary marriages. W hether or not the customary marriage rites are 
followed by church or Ordinance M arriage ceremonies appears to depend more upon the means 
and status of the partners than on any fundam ental differences in attitudes or beliefs.
Finally Professor W oodm an makes a further contribution to the perennial discussion of the 
reform o f the law of inheritance.
124
CH A PTER 7
SO M E IM PL IC A T IO N S O F O U R LAWS O F M ARRIAGE AND SU CCESSIO N
K .  B e n t s i - E n c h i l l  *
The social organisation of many of our traditional societies is based on unilineal descent 
groups, that is, clans and lineages. And these groups constitute the basis of much of our customary 
law o f succession.
Thus “ family” in our current law is defined in strict unilineal, lineage terms, and succession 
to property and to office is mostly derived from m embership of the lineage. A representative 
definition which summarises the core of our customary law of succession runs as follows: “ The 
family is the group of persons lineally descended from a common ancestor exclusively through 
males (in communities called patrilineal for this reason), or exclusively through females starting 
from the m other of such ancestor (in communities called m atrilineal for this reason), and within 
which group succession to office and to property is based on this relationship.” (Bentsi-Enchill, 
1964; 25).
Now the unilineal descent group is constituted on an explicitly partial basis, that is, on a 
basis which denies or ignores the fact that descent or filiation is bilateral. The mythical explana­
tion which the Akans furnish for their change-over to a system of m atrilineal descent testifies to 
this posture of explicit denial or ignoring of one side of the family tree. So that our rules of inhe­
ritance based on these unilineal descent groups are vitiated by this explicit rejection of the rele­
vance of a whole half-segment of an individual’s family tree. It is this rejection which explains 
the unsatisfactory provision for a m an’s children in m atrilineal systems of succession, and for 
a m an’s widow or widows in both matrilineal and patrilineal systems.
As a consequence of the factors implicit in the foregoing, our traditional societies and legal 
systems (in most o f G hana, at least), effectually deny and substantially discourage any concept 
of the unity of the conjugal family. W ith us the wife is not a member of her husband’s family 
and the husband is not a member of his wife’s family. This is so in our m atrilineal com m unities; 
and it would seem to be so in our patrilineal communities. It is certainly so among the Ewes. 
(Nukunya, 1974: passim; Kludzc, 1974: passim). But it needs not have been so. In much the same 
way as slaves and strangers could be incorporated into a lineage or clan, our societies could have 
regarded wives as being incorporated into their spouses descent groups. But they do not. And 
by their refusal to regard spouses as incorporated into the descent groups of their mates, our 
social systems and our custom ary legal systems effectually deny, and operate to discourage, the 
evolutionary factors that generate the propensity to union in the conjugal family unit.
It is difficult enough for a m an and wife to live and work together for a long time in peace 
and harmony. O ur widespread system of unilineal descent groups into which the wife is not 
admissible piles additional divisive pressures on the m arried couple. If  a wife does not become
* Research Professor, Department o f  Law, University o f  Ghana and Comm issioner for Stool Land Boundaries (D ied  by m otor accf 
dent 27/10/74).
a member of her husband’s lineage, then her husband’s property must, in principle, be kept 
away from her and passed on to his descent group; his economic exertions must be pushed in a 
similar direction away from the wife. And the wife whose childbearing and housekeeping chores 
necessarily make her the weaker partner, is driven to seek security in her own endeavours and 
those of her descent group. It becomes patently unwise for her to sink in her lot with that of her 
husband. The respective descent groups will resent and work against any misdirection of pro­
perty or endeavours in favour of the alien spouse. The common allegation that m arriage, with 
us, is a union of families turns out to be intrinsically irrelevant when it comes to questions of 
succession to property.
In m atrilineal communities, even the unifying com m on interest which children can bring 
to a m arried couple has to contend with the notion that the children do not belong to the father’s 
family. But, as we might put it, who cares? The husband’s family get the property and the wife’s 
family get the children. In patrilineal communities the husband’s family get the children and 
the children get the property. But the children can be trusted to look after their m others, and 
in this the patrilineal system reveals one element of superiority. For it tends to reinforce the 
spouses common interest in their children.
A  starkly instrum ental and narrow view of m arriage as an agency for childbearing is revealed. 
M arriage may be term inated if a wife is barren or a husband impotent. The wife in our system 
is essentially a gage or pledge; the bridewealth is the money advanced for her services, and is 
norm ally returned if her services are terminated. An adultery fee is payable to her husband if 
she is seduced but she has no such rights in her husband’s person. In many communities she was 
traditionally treated worse than a concubine if she was divorced, for she was obliged to pay back 
not only the bridewealth but also gifts made to her by her husband and various expenses made 
on her behalf by him. Even upon the death of her husband and her refusal to accept the husband’s 
successor or relation as husband, she was still normally required to return the bridewealth in 
order to obtain her release as a widow, free to remarry. The fact that she may have spent herself 
in bearing children and serving the household gains only grudging acknowledgement in the cal­
culus of liabilities when divorce ensues. Could there be a m ore powerful incentive for women to 
go out to w ork?
The system of bridewealth paym ent gives the wife’s family a vested interest in preserving 
an unhappy marriage, for the cynical reason of postponing the evil day when the bridewealth 
m ust be returned. A built-in tem ptation to ambivalence in the attitude of the w om an’s lineage 
to the marriage becomes discernible—a factor which may help to further depress the wom an’s 
meek role as wife.
The enforced ambiguities of children’s attitudes (in matrilineal systems) to their father’s 
lineage members would also merit study.
But the fundam ental ambiguity or source of tension is the one I have draw n attention to— 
the systemic non-recognition of so natural and elemental a unit as the conjugal family unit. 
For this is a natural unit o f co-operation designed to cater for the physical, m ental and psychic 
needs of the long m aturing human infant and for the com plem entary needs of the m arried couple.
And the question which arises is whether facts of this level of im portance can be ignored 
or denied with impunity as our system of unilineal descent groups attem pts to do. As we know, 
individuals who plunge themselves into fire out o f sheer mistake or on the basis o f some false
126
scientific theory regarding the nature of fire run a danger of self-destruction. W hat then of 
societies which organise and conduct themselves on the basis o f erroneous scientific ideas and 
half-truths? May we not reasonably suspect that they run as much danger of frustration and 
self-destruction, even though the hazards to which they thus expose themselves may be complex 
and difficult to describe? My next proposition then is this: our systemic and ideological denial 
of the unity of the conjugal family is fraught with harm ful consequences for our society.
At the level o f the conjugal or nuclear family our society should be exerting pressures which 
reinforce the factors prom oting co-operative economic endeavour fostering a sense of common 
purpose in the launching of the next generation, and assuring a wife that her efforts will not go 
unrewarded upon her husband’s demise. O ur system of unilineal descent groups work in the 
opposite direction, exerting divisive pressures. It leads to a narrow instrum ental view of marriage 
that operates harshly on our womenfolk and maximises their sense of personal insecurity—a 
condition most unsatisfactory for the rearing of children.
Fourthly, I would state that our tolerance of polygyny is a good indication of the erroneously 
low estimate that our society places on the marriage institution. Correspondingly, the fact that 
polygyny is bigamy in the overwhelming majority of countries that is a crime, a sin, underlines 
the impor tance attached by them  to the m arriage institution and to the protection of the conjugal 
unit.
If the conjugal unit is o f the elemental im portance that the facts seem to suggest, then one 
measure of the adequacy or otherwise of a society's laws and institutions regarding marriage 
would be the degree to which they protect and assist this unit. And this consideration yields 
criteria for assessing a country’s laws regarding marriage and succession. Against this background 
our society’s tolerance of polygyny and our systemic exclusion of the widow from the inheri­
tance become suspect. A minority view, or minority system, (such as our m atriliny, polygyny 
and widow exclusion arc) is not necessarily erroneous. But a minority system is under a challenge 
to dem onstrate superior merit if it is to survive. And it is gravely questionable whether our 
tolerance of polygyny and our unilateral succession rules possess that superior merit.
Tolerance of polygyny, I would say, is predictable from  our systems o f unilineal descent 
that deny membership and succession rights to the wife or any num ber of wives. Such tolerance 
is also predictable from  the narrow instrumental view of the wife indicated by our traditional 
system. No less predictable, I would suggest, is the essentially divisive force of jealousy and 
rivalry between wives that polygyny introduces into the conjugal unit, and its tendency to aggra­
vate still further the insecurity of the wife and her need to seek a separate security. And I would 
add that we need studies of the effect o f polygyny on children and on the psychology of the 
polygynous husband.
Note
While the foregoing statem ent summarises the fundam ental logic of our custom ary law 
of succession, it deliberately omits reference to legislation and case law which can be said to have 
modified or developed the custom ary law. This for many reasons:
(a) Legislation such as the M arriage Ordinance and the M arriage of M oham m edans 
Ordinance has substantially affected only a tiny minority of the population, and its operation 
is significantly affected by the circumambient custom ary legal understandings and practices—a 
topic meriting special investigation.
127
(b) O ther legislation such as the Education Act 1961, the M aintenance of Children Act 
1965, the Wills Act, 1971 and the M atrim onial Proceedings Act of 1971 contain provisions which 
if enforced, would give some added protection to the conjugal unit under custom ary law and 
clarify and enforce its obligations to children. But they have yet to pass from  the status of the 
law in the books to that o f the law in the lives and action of the people.
(r) Development in the case law requiring a recognition of widow’s and children’s rights 
to maintenance and of the estate of a deceased m atrilineal intestate are interesting and im portant 
in the indication they give o f how the courts will handle such cases in future if brought before 
them, and as influences for change.
But for each one case that reaches the courts, thousands do not get breathed about, thou­
sands are settled in accordance with traditional understandings before they reach court; and 
m any o f those that reach court are withdrawn for settlement or not prosecuted.
(d) G hana has yet to take action that deals with the substance of the custom ary law prac­
tised by the overwhelming bulk of the people.
Bentsi Enchill K. 
Kludze A. K. P.
N ukunya G. K.
Bibliography
1964 Ghana Land Law  London, Sweet & Maxwell 
Family Property and Inheritance Among the 
N orthern Ewe. Chapter 10 in Legon Family 
Research Papers No. 1.
Some Bilateral Elements in Anlo Kinship 
Chapter 9 in Legon Family Research Papers 
No. 1 (ed) C. Oppong.
1974
1974
128
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Some implications of our laws of marriage and succession

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Some implications of our laws of marriage and succession

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