One of the most common questions that comes into us at Scattering Ashes is: I want x or y to split the ashes, so I can have some – can I force them?
Quick Answer: No you can’t.
Want to know why, well most of the legal thinking is set out in the poignant and sad case of Fessi v Whitmore [1999] 1 FLR 767, the court was tasked with resolving a heart-wrenching dispute between divorced parents over the final resting place of their 12-year-old son, Mark, who had tragically passed away shortly after relocating to Wales with his father.
Background of the Case
Following the parents’ divorce, Mark resided with his father, who became his primary caregiver. The father and son had recently moved to a new home near Aberystwyth, Wales. Tragically, Mark died in an accident just days after the move. The father wished to inter Mark’s ashes near their new residence, allowing him to tend to his son’s resting place personally. Conversely, the mother preferred the ashes to be scattered in Nuneaton, the family’s previous home, where the child’s paternal grandfather’s ashes had been laid to rest.
Court’s Consideration and Decision
The court recognized that both parents held equal standing concerning decisions about their son’s remains. Judge Boggis QC emphasized that the father’s role as the primary caregiver did not grant him overriding authority in this matter. Instead, the court sought a resolution that honored the child’s memory and addressed the emotional needs of both parents.
In its deliberation, the court considered several factors:
- Family Unity: The court aimed to select a memorial site that would serve as a focal point for the entire family, facilitating collective mourning and remembrance.
- Existing Family Memorials: Given that the paternal grandfather’s ashes were already interred in Nuneaton, this location provided a natural and meaningful site for the father’s visits and reflections.
- Accessibility and Shared Grieving: Nuneaton, being the family’s former home, was a place of shared memories and connections, making it a fitting location for all family members to honor Mark’s life.
After evaluating these considerations, the court concluded that Mark’s ashes should be scattered at the Nuneaton Crematorium. This decision was deemed to provide a balanced and respectful solution, allowing both parents, along with extended family, to have a meaningful place to remember and pay their respects to Mark.
Legal Implications
The Fessi v Whitmore case underscores the court’s role in resolving disputes over the disposal of a deceased’s remains, especially when consensus cannot be reached among equally entitled parties. It highlights that the court does not automatically favour the wishes of one parent over another, even if one was the primary caregiver. Instead, the court seeks a solution that serves the best interests of all parties involved, focusing on fairness, justice, and the deceased’s memory.
Additionally, the case illustrates the court’s reluctance to divide ashes, as Judge Boggis QC found that to divide the child’s ashes, as proposed by the mother, would be “wholly inappropriate”
This stance reflects a broader legal and cultural perspective that views the division of ashes as potentially diminishing the sanctity of the deceased’s remains.
Final thoughts
One on the most interesting aspects of the case for me was that they didn’t consider possession in all this. They have the ashes so they chose, the courts are clearly saying that is not the point. Therefore, if you have a have a claim then the courts may be the route HOWEVER do this with presence of mind that it will be painful, protracted and expensive and you may not get the answer you wanted. First step seek conciliation no matter how tough that might be.