Marriage and burial obligations of the Church of England

The Church of England actively encourages marriage in its churches, with the gushing statement on its website:

“Thinking of a church wedding?

Congratulations! You’re welcome to marry in church whatever your beliefs, whether or not you are christened and whether or not you regularly go to church. And, marrying in church has never been easier – there are more churches to choose from than ever before.”

However, its approach to funerals, is more reserved, and states

“Everyone is entitled to either a burial service (funeral) or to have their ashes buried in their local parish churchyard by their local parish priest regardless of whether they attended church or not,”

These entitlements stem from the duties of a minister to solemnize marriage, “as part of the customary law of the Church of England”[1] and, less ambiguously, from Canon B 38 §2 in relation to burial.  However, each is subject to slightly different restrictions, particularly in the case of churchyard burial where an individual, couple or family group seeks to reserve a burial plot as in the recent judgement, Re All Saints Heathfield [2013] Chichester Const Ct, Mark Hill Ch. Here a faculty was sought for the reservation of a grave space for the petitioner’s mother, whose husband had died in a car accident whilst working in Nigeria in 1964, and his remains were repatriated and interred in the churchyard in that year. Although there is no marker or gravestone to mark the interment, his name is recorded in the church’s Book of Remembrance, alongside which his age at the date of his death is recorded in pencil.

A faculty had been granted in 1963 to the church for the establishment of a Garden of Remembrance within the churchyard and, the circumstantial evidence suggested the likelihood was that his cremated ashes were interred there. The petitioner’s mother had expressed an earnest wish that after her death she would be buried in the churchyard and that a headstone be erected over her grave which might also bear the name of her late husband. However, the petitioner’s mother did not live within the parish nor was her name on the electoral roll of the church, and therefore she had no legal right to burial in the churchyard of All Saints Heathfield.

The law and practice regarding the reservation of grave spaces is addressed comprehensively in Re West Pennard Churchyard [1991] Bath and Wells Const Ct, Newsom Ch  1 WLR 33, ( see (1991) 2 Ecc LJ 232 for summary), which explains that where there is no legal right to burial, s6(2) Church of England (Miscellaneous Provisions) Measure 1976 empowers the minister of a parish, having regard to any general guidance given by the PCC, to permit an interment. In the instant case, after consultation with the archdeacon and the PCC on matters of principle and in relation to this particular request, the incumbent had not given his consent on the grounds that at the time of the petition, there were only seven spaces remaining which by the time of the hearing had reduced to “four or five”.

Comment

In refusing the faculty in Re All Saints Heathfield, the Worshipful Mark Hill QC noted that the absence of consent on the incumbent’s behalf was entirely reasonable since he reached his decision after the appropriate consultations.  In view of the limited grave space available, “to reserve one for any particular individual would serve to prejudice the public right of burial enjoyed by all parishioners until such time as the churchyard is full.” This is consistent with The Churchyard of Wick St. Lawrence [2013] Bath and Wells Const Ct Briden Ch in which consent was refused in the absence of a legal right to burial, where the team rector and PCC had not supported the petition, [although the court regularized and earlier informal agreement with a previous team rector under a different benefice arrangement].  Chancellor Hill noted the significant part of this earlier judgement, in which Chancellor Briden had stressed that for the court to go against the wishes of the incumbent

“would be to subvert the purpose of Section 6(2) of the Church of England (Miscellaneous Provisions) Measure 1976, since the provision of a space reserved by faculty would override the minister’s power to give or withhold consent to the eventual burial.”

The chancellor opined that since the parish of All Saints Heathfield is actively exploring the possibility of re-using parts of the churchyard in order to make further grave spaces available, this may mean that a future request from the petitioner’s mother might be treated differently.  Equally it may be that consideration could be given to the erection of a headstone, naming both the petitioner’s parents, his mother’s ashes to be interred in the churchyard. However, as neither of these matters was before the Court, he considered that it would be wiser not to express a view.

The chancellor observed [at para. 9] that

“[t]here is no analogous ‘qualifying connection’ in respect of burial as was introduced for marriage under the provisions of the Church of England Marriage Measure 2008”,

the rationale for which is found in the House of Bishops’ Guidance [at para.21, emboldening in original]

“It is important for the Minister to bear in mind that the Measure was passed because the Church wishes to support and encourage marriage, and to provide a welcoming ministry to couples who wish to be married in Church”.

The declining availability of burial space is becoming a consideration of the consistory courts, for example Re Wandsworth Cemetery and a Petition by Magdalen Rees [2013] Southwark Const Ct, Philip Petchey Ch, and Re The Churchyard of Wick St. Lawrence  and it would therefore have been unwise for the Church to have adopted a similar approach to burials as for weddings.  The 2007 Ministry of Justice publication Burial grounds: the results of a survey of burial grounds in England and Wales (i.e. contemporary with the start of the CofE Marriage Project), indicated that 64 per cent of Church of England/Church in Wales burial grounds were open for new burials, while a little under 20 per cent were closed to new burials.  However, the report also noted

“For both Church of England and local authority burial … approximately 80 per cent of land available for burials was already occupied by graves, with 20 per cent still unused. Twenty per cent of local authority burial land was occupied by graves over one hundred years old, compared to 36 per cent of Church of England burial land.”

It is encouraging that All Saints Heathfield is actively exploring the possibility of re-using parts of the churchyard in order to make further grave spaces available, a solution that was recommended to government in the 8th Report of the Environment, Transport and Regional Affairs, Session 2000-01,

“127. It is the almost universal view of those in the burial industry that reuse is the only long-term solution not only to the lack of burial space, but also to the long-term financial viability of cemeteries. If the public are to continue to have access to affordable, accessible burial in cemeteries fit for the needs of the bereaved, there appears to be no alternative to grave reuse.”

However, the HC Library Standard Note,Reuse of Graves“ appears to be updated more frequently than government thinking on the issue[2]. It records the statement of the Lord Bishop of Southwell and Nottingham, [HL Deb 22 April 2009 cc1497-9]

“On 2 April the Parliamentary Under-Secretary of State wrote to the chairman of the Churches Funeral Group explaining that,

“after careful consideration, the Government has concluded that this is not the most appropriate time for taking these matters forward”.

Why, after eight years of discussion, is there a shortage of parliamentary time for legislation, or is there a more fundamental reason?”

The Note also states that “[t}he position is particularly acute in London” where “[i]n limited circumstances,  . . . burial authorities may already reclaim and reuse old graves”. Although the shortage of space for burial was acknowledged by Helen Grant, then Parliamentary Under-Secretary of State for Justice, in an adjournment debate on 5 September 2012, [HC Deb 5 September 2012 col. 560],she stated

“I am aware of the difficulties that some burial authorities are experiencing both with a shortage of burial space and in finding practical and affordable alternatives, particularly in some urban areas. However, we have not yet reached the stage where the position is critical or requires Government intervention.”


[1] M Hill, Ecclesiastical Law (3rd Edn), [2007, OUP Oxford], 167.

[2] Last updated 27 November 2013


Update, August 2017

The general rule was that no body may be buried in consecrated ground without the burial service being performed, although this was “More honour’d in the breach than the observance” (Hamlet). In July 2017, General Synod passed Amending Canon 37 and the petition seeking its Royal Assent, GS 2029CC. The amending canon removes the general rule banning the use of the standard burial service for those who had taken their own life while of sound mind, and for those who died unbaptised. In addition, the modification includes a conscience clause for clergy to object to these changes.

Cite this article as: David Pocklington, "Marriage and burial obligations of the Church of England" in Law & Religion UK, 10 December 2013, http://www.lawandreligionuk.com/2013/12/10/marriage-and-burial-obligations-of-the-church-of-england/

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