Burial and /or Cremation

Everyone who lives or dies in England and Wales has the legal right to be buried in their local Church of England or Church in Wales churchyard, provided there is an available space there. This is a right founded in ecclesiastical law, rather than in civil law. In practice, more and more of us are being cremated, rather than buried and, for those individuals, the right of burial is transferred to their cremated ashes.

If the local parish church has no room in its burial ground, or if the deceased person's 'nearest and dearest' prefer not to use the Church facilities, there are four other options:

  • Use a local authority cemetery;
  • Use a cemetery provided by another religious organisation;
  • Use a private-sector commercial cemetery (woodland settings are popular);
  • Obtain permission for a private burial in the deceased's own garden or elsewhere.

Any of those four burial arrangements may of course be preceded by a cremation.
Advice on the available options in your own area is easily obtained from local funeral directors.

Open and Closed Churchyards

An open churchyard is one provided by the Anglican Church and still open for new burials. When the churchyard is full, the Church may apply to the Queen for an Order in Council declaring it to be a Closed Churchyard.

In England, the Parochial Church Council can then serve notice on the (municipal) Parish or District Council requiring the local authority to take over the maintenance of the Closed Churchyard. Where the recipient local authority is a parish council, they can serve a further notice requiring their district council to take on the maintenance liability. However, the district will sometimes claim that this is a local matter and shift the bills for work done back onto the parish taxpayers. A local authority maintaining a Closed Churchyard under these provisions of the Local Government Act 1972 (or its predecessor statutes) must keep it in decent order and keep its fences and walls in good repair. The local authority needs to come to a clear understanding with the church as to the exact boundaries of the closed churchyard. The church building is not part of the Closed Churchyard, even if it is wholly surrounded by it, but it is as well to be clear about the status of the pathways leading from the public highway to the church doors and whether or not the lych gate (if there is one) is regarded as part of "the church" or as part of the "closed churchyard".

In Wales, burial grounds which had been closed by Act of Parliament or an Order in Council before 1920 could be transferred to the Representative Body of the Church in Wales. The Representative Body is responsible for the maintenance of all burial grounds which have become vested in it under the Welsh Church (Burial Grounds) Act 1945. There are some closed churchyards in Wales for the maintenance of which a local authority has become historically responsible, but no new closed churchyards have been transferred to local authority liability since 1972.

Local Council Cemeteries

Many parish and town councils (and larger urban authorities) run their own cemetery for the local community. Local authority cemeteries usually have a line across, separating the consecrated ground from the unconsecrated. You cannot always see the line very well, but it can be found, when needed. As a matter of law, a mark at each end of the line will suffice; see section 24 of the Cemeteries Clauses Act 1847.

Cemeteries need a long-term approach; they are difficult to establish as new facilities and difficult to extend afterwards. Planning permission in either case will depend on an Environment Agency report on the groundwater conditions, to avoid pollution. If land cannot be bought by agreement, the council can ask for a Compulsory Purchase Order.

Is it Lawful for a civil Parish Council to Fund the Maintenance of an Open Churchyard?

The law is not as clear as it might be.

The Local Government Act 1972 says very clearly in section 214(6) that a parish council may lawfully contribute to the upkeep of a burial ground maintained by another person. Some people argue that this applies to the upkeep of an open Church of England churchyard. But there is an unresolved legal argument to the contrary, which is that spending money on the maintenance of a burial ground which the ecclesiastical authority, the parochial church council, itself has a legal obligation to maintain, might be unlawfully irrational. Why would it be reasonable for the civil parish council to spend its taxpayers' money on a subsidy to a religious organsisation (the parochial church council) which already has a binding legal obligation to fund the work itself? It would be a waste of taxpayers' money. One counter-argument is that keeping a burial ground open by contributing to its expansion and maintenance might in a particular case be cheaper than allowing that burial ground to close and then having to take on the entire maintenance liability under section 215...

As I said, the law is not as clear as it might be.

Exclusive Rights of Burial

It has long been the wish of some people to reserve a plot in their favourite cemetery or churchyard by purchasing an Exclusive Right of Burial. It is obviously important to let the purchaser's friends and relations know about it, so that the Right can be invoked at the appropriate time.

Crematoria

There are local authority crematoria and there are private sector ones. The general public tends to be concerned mostly with the ambience and the accessibility, but the owners also have to worry quite a lot about the environmental hazards of this kind of disposal. There are strict controls on emissions of smoke and on the disposal of other by-products of combustion.