Right of Burial
At common law, every parishioner and inhabitant in the parish and every person dying within the parish had the right to be buried in the parish churchyard. If the parish was divided into ecclesiastical districts and there was no burial ground within the district, the bodies of persons lying in a district could be interred in the cemetery of the parish church.
The right of burial does not entitle the deceased’s representatives to insist upon the burial of the deceased in any part of the churchyard. Matters of customs arise. The right of burial extends to burial in an ordinary manner. It does not carry the right to erect a monument.
At common law, no fee was due in respect of burial in an established church churchyard. A fee could be payable by reason of custom. It was generally payable to the incumbent rector of the church. Burial fees were recoverable by ecclesiastical law only.
The above rights applied to the established church after the Renaissance. Until 1844, Catholics were technically required to be buried in accordance with the Church of Ireland service.
A person who died unbaptised or excommunicated or from suicide was excluded under ecclesiastical law from Christian burial. The full burial service was not read over the remains.
The bodies of offenders executed were buried within the walls of the prison within which they were executed.
Control of Burial Ground
In the case of a Catholic churchyard, the position is in the control of the priest of the parish. In the case of a Presbyterian churchyard, the churchyard is held in trust by members of the congregation.
Other churchyards are held under companies or committees under the Burial Grounds Act. Such entities own the soil but may part with property in any plots.
The control of burial grounds in the Church of Ireland is entrusted to the clergy and churchwardens but subject to the power of a representative body. The Burial (Ireland) Act 1868 declared it lawful for a person who is not a member of the established church to be buried in accordance with the rights of the church to which he belongs.
Dealing with a Body
A duty attaches to certain persons to bury or dispose of the body. Burial or cremation are the normal methods.
A person may not dispose of his body by will. Directions given are not binding on his personal representative. He may give directions in connection with an anatomical examination of his body after death. A person entrusted with the body only for the purpose of interment cannot authorise anatomical examination.
A dead body left unburied may be a nuisance. A person occupying or controlling the land concerned may be liable for a nuisance. The duty is different from the duty to dispose of the body. This passes to the executors or other close relatives.
Common law recognises no property rights in a dead body. It recognises as incident to the duties of disposal of the body the right to possession of the body until disposed of. The creditor may not retain the body as security.
The grant of a right of burial does not confer any freehold interest, even if it is perpetual. The rights of the grantee are to open the vault for the purpose of interments after notice to the authority and to execute repairs with its consent. The right of burial may be assigned by lifetime transfer or left by will.
The authority must prepare a plan and keep a book of reference for the ceremony, with each burial place numbered or otherwise identified. It must keep a register of grants of burial rights. It must allow for the assignment of such rights.
Grave spaces must be clearly and permanently marked to facilitate the locating of graves. They must be at least nine feet long and four feet wide. They must be sunk to at least eight feet or a lesser depth as permitted where the subsoil does not allow for that depth.
Boards/local authorities may sell the exclusive right to burial either in perpetuity or for a limited period in such parts of any burial ground provided by the Board as may be appropriate for the purpose. They may also sell the right to construct any chapel, vault or place of burial with the exclusive right of burial therein in perpetuity or for a limited period and also the right to erect and place any monument, gravestone, tablet or monumental inscription in burial ground subject to such provisions.
The exclusive right shall not extend to more than one-half of the burial ground.
Funeral expenses are payable out of the deceased’s estate. They generally have priority over other expenses. See the section on the Succession Act.
An undertaker who performs a simple funeral fitting to the position and circumstances of the deceased may recover reasonable charges from an executor who has assets without a specific contract, unless contracted with another, in which case the executor is not liable to the undertaker.
Generally, there will be a contract in relation to the provision of the funeral. At common law, the husband is responsible for the wife’s funeral expenses. However, this no longer applies.
The funeral expenses of a person killed by the negligence of another are recoverable for the benefit of his estate.
Under the Local Government Sanitary Services Act 1948, a new burial ground requires the consent of the Minister for the Environment and Local Government. The person may not be buried in a burial ground other than one recognised by the act. No other burial places are permitted without consent.
The Department of Environment has laid out requirements in relation to siting and specification of burial grounds. It involves inputs from the planning department and the medical officer. They allow technical specifications in relation to facilities such as the provision of car parking facilities, etc.
In effect, burial grounds comprise burial grounds provided by a Burial Board or local authority under the Public Health Act or burial grounds or places lawfully used at that time in respect of which the Minister gives consent to bury.
Where by usage or otherwise a grave or place of interment has been the burial place of any family, no corpse of a person not being a member of such family shall be buried in the grave or the place of interment without the consent of some immediate relative of the member of such family last interred therein.
It is an offence to knowingly act or assist in any burial contrary to the provision.
Councils /Burial Boards
Burial boards may make arrangements for the conveyance of bodies from the place of death to burial grounds. Burial Boards may provide places for the reception of bodies until interment.
The Public Health Act deemed the Sanitary Authority of each district (now the local authority) as Burial Board for that district. The general management, regulation, and control of burial grounds were vested in it.
Under earlier legislation, burial grounds which had been vested in boards of guardians by the Church Temporalities Commissioners were transferred to the Burial Board. Previous boards under earlier Burial Grounds Acts were transferred to the Burial Boards.
Local authorities may provide new burial grounds within their area or outside it. Department of Environment consent is necessary.
Local authorities have the power to acquire land by agreement or compulsory acquisition for the purpose of a burial ground. Boards may grant exclusive rights of burial for limited periods or in perpetuity.
The Department of the Environment and local government have the power to restrain or order the discontinuance of burials in a specified place. It may order an enquiry into the matter before making a decision on foot of a representation or complaint made.
Where there is a usage or right of interment in any church or chapel affected by an order of discontinuance or in any vault, church, chapel, churchyard or burial ground affected by the order where any exclusive right of interment has been purchased or acquired prior to 1856, the Department may grant a licence dispensing with the discontinuance, subject to such conditions as might be specified.
An exhumation is only permitted under an exhumation license. This is granted under the Local Government Sanitary Services Act as amended in 1994. Following exhumation, the remains must be re-buried within 48 hours.
An exhumation license requires the consent of next of kin, identification of the burial plot, due respect to the deceased and public health and decency considerations. The Environmental Health Officer will consider the application.
The exhumation must be notified to the environmental health officer at least five days in advance. Arrangements must be made for the storage and transport of remains between the period of exhumation and reburial. Screens are to be placed around existing graves to prevent public view. Disinfectants and protective materials are required.
The remains are to be placed in a new casket, subject to requirements as to its make, dimensions, etc. The appropriateness of any inscription and plaques on part of the ground is a matter for the Ministers of the particular denomination concerned.
The Cemetery Clauses Acts are incorporated into the Sanitary Authority. Burial boards/local authorities have the power to purchase lands for cemeteries or contract with cemetery companies to provide cemeteries. The Cemetery Authority has powers to acquire land compulsorily under the legislation.
The Burial Authority may build roads and fences. It may build chapels and lay out grounds. The authority must provide for the drainage of the cemetery.
The Department of the Environment has the power to make rules and regulations in relation to burial grounds; places of reception of bodies as may be necessary for the protection of public health and decency; and proper registry of interments. It may also provide for inspection and recovery of penalties.
The local authority may take over the management of private burial grounds by agreement.
The board/local authority may, subject to the approval of the department, fix fees and payments for interments as they see fit.
The Minister for the Environment and Local Government may make regulations in relation to burial grounds for the purpose of protection of public health and maintenance of public decency. It may provide for the inspection of cemeteries.
Where a burial ground is not fenced or kept in decent order, the Burial Board may serve a notice requiring it to be fenced and properly kept. If the works are not done, the burial board may enter the ground concerned and do the requisite works, recovering the expense.
Burial Boards are obliged to keep closed burial grounds in decent order and do the necessary repair of walls and fences. No animal is to be allowed to graze in burial places. This is subject to a fine of up to €1270.
Where a burial ground has been closed by order, the authority may provide a suitable and convenient ground in place thereof.
The Minister may make regulations in respect of the disposal of human remains other than by burial.
There are four crematoria in Ireland. The medical referee must be satisfied that the attending doctor viewed the body before death, completed the medical certificate and there is no reason why the body should not be cremated. If there is any question about the cause of death, cremation is unlikely to be permitted.
Local authority by-laws make provisions in relation to cemeteries. They specify sizes, graves, spaces and requirements for fencing. They may require that the body be closed in a coffin.
There are requirements regarding opening of graves and dealing with previous coffins within the same grave. There are provisions regarding walled and unwalled graves. By-laws may may make it an offence to interfere with interment.
Some by-laws make provision for interment of ashes in the grave. The by-laws make provision for the registers and entries of burial. They make provisions for the purchase of rights of burial.
By-laws make provisions in relation to the erection of monuments, tributes, shrubs and flowers. The size and positioning of a monument may be proscribed.