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Exhumation the rules broken down and explained

Exhumation

Rules for consecrated and unconsecrated  ground

For the exhumation of a body or cremated remains from consecrated ground, it will be necessary to obtain a Faculty from the Chancellor of the Diocese. It is no longer necessary to obtain an Exhumation Licence from the Ministry of Justice, even if it is intended that the remains should be re-interred in unconsecrated ground (see section 2 of the Church of England (Miscellaneous Provisions) Measure 2014, amending section 25 of the Burial Act 1857).

If the remains to be exhumed are in unconsecrated ground, then a licence will be required from the Ministry of Justice. Enquiries about obtaining an Exhumation Licence from the Ministry of Justice should be addressed to:

Coroners Unit, Ministry of Justice, 102 Petty France, London SW1H 9AJ.
Tel: 0203 334 6390. Email: coroners@homeoffice.gsi.gov.uk

The Church regards burial as final, and so a Faculty will not normally be granted to authorize an exhumation, except in exceptional circumstances, for example, where a body has accidentally been buried in a grave already reserved for someone else, or in any other special circumstances which the Chancellor of the Diocese considers justify a departure from the general rule. The law relating  to exhumation is set out in the leading case of Blagdon Cemetery [2002] Court of Arches, in which the Court discussed the reasons which might be considered as justification for allowing an exhumation. These, in summary, are as follows:

  • Medical Reasons – the deteriorating health of surviving members of the family, which may make it difficult for them to visit an existing grave, is not normally a sufficient reason to justify an exhumation.
  • Lapse of Time –  generally, the longer the period since the original interment, the more difficult it will be to show that removal of the remains is justified.
  • Mistake – where a genuine mistake has been made, and remains have, for example, been buried in the wrong plot, or, contrary to the family’s wishes, in ground which was consecrated, a faculty may be granted. But a simple change of mind on the part of the surviving relatives about where the remains should be interred is not generally sufficient justification for the grant of a faculty.
  • Local Support – the support of close relatives for the exhumation proposed will normally be required, but the support of third parties, such as friends of the family, local clergy and others, will not normally be a relevant consideration which the Court should take into account.
  • Precedent – the Court will have regard to the possible effect of any faculty granted to authorise an exhumation in setting a precedent. The Court will not wish to establish a precedent which undermines the general presumption that interment is intended to be final.
  • Family Grave – the Court will have regard to the existence of an established family grave plot, and may be prepared to grant a faculty for exhumation where the intention is to bring the remains of family members together in one plot.

Each proposal for a faculty to authorise an exhumation will be considered on its particular circumstances, but the general presumption is that exhumation will be authorised only if the circumstances are exceptional.

A special form of Faculty Petition is used for an application for exhumation, and advice should be sought from the Diocesan Registrar. http://www.diocesanregistry.co.uk/

2 thoughts on “Exhumation the rules broken down and explained

  1. Reply
    Mrs.Helen Kerekes - 21st October 2023

    My daugther’s ashes was buried in woodlans she owned, Her husband inherited the land.
    She was a catholic the ground was blessed by the priest. Now her husband wish to sell the
    land. Can he be stopped??? Or what can we do?? Her children and I am very upset.

    1. Reply
      Richard Martin - 27th October 2023

      Dear Helen
      He is allowed to sell the land. As to the legal restriction, was permission sought from the Local Authority to bury there? The consecration adds another tier of complexity. You may have some redress with the help of solicitors (email us directly about this if you wish), I would attempt some form family meeting before you go down this route as it can make things worse.
      Kind regards
      Richard

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