The Funeral Code not far from giving up the ghost? For ten years, hundreds of complaints have been transmitted to the Defender of Rights concerning the difficulties encountered by relatives of a deceased person during the procedures to organize his funeral or manage his burial. The Defender of Rights looked into the subject and
published a report on Wednesday.
“Old”, “poorly known” “unsuited to developments in the family unit” … Claire Hédon makes an uncompromising observation on the regulation of funeral law. And pleads for a modernization and a simplification of the texts.
Regulations deemed too old, but to what extent?
Funeral law is made up of two parts: the first concerns individuals and personal rights, the second concerns public services.
It is the first part, which therefore concerns funerals, the organization of funerals or rights to the estate of the concession, which is qualified as archaic. “The funeral law has been reformed in a very partial way throughout history, explains Théo Clerc, lawyer in funeral law. However, the real founding text is the law of November 15, 1887 on the freedom of funerals, which imposed a framework. Another key moment, the separation of Church and State in 1905, when “provisions have changed the organization of cemeteries.”
Why is the legislation considered too complex?
In addition to being divided into two parts, funeral law, in its second part – that concerning public persons – consists of a series of provisions scattered in other codes. “For example, you have to refer to the Town Planning Code to find the rules specific to constructions near cemeteries,” explains Théo Clerc. A range of provisions can also be found in the General Code of Local Authorities, which governs the public funeral service and the management of cemeteries.
What ubiquitous situations do certain strict rules lead to?
The complexity of this funeral right inevitably has repercussions on families and actors in the sector. For example, the law requires that if the time between death and burial exceeds six days, an exemption must be obtained from the prefecture. “When it is slow to be sent, we can sometimes hear, from the administration of the cemetery, that there will be no burial and that the body will go to the provisional vault, reports Christian de Cacqueray, director of the Catholic funeral service. This makes your hair stand on end because this exemption was shattered during the 18 months of the Covid-19 crisis and we did not do badly. “
Another legal complexity that some overwhelmed courts would do well is that which arises when a person dies in solitude, but has family. Currently, the judge must summon all his siblings to find out who will organize the funeral. “While sometimes, the person closest and best placed to ensure respect for the last wishes of the deceased is his neighbor. “
For cremation requests, the document is issued to the Town Hall. “If a deceased has two sisters, it is enough for one of them to sign the document for it to be validated. But if the deceased is the subject of a police investigation, in the context of a suspicious death for example, the cremation request must be signed by the two sisters ”, reports a funeral counselor on condition of anonymity, illustrating the multiplicity of rules. Moreover, she admits, even for the players in the sector, it remains unclear and that everyone is doing “as much as they can”.
Why does it turn out to be ill-suited to changes in the family unit?
The problems arise above all with regard to family concessions which, over the course of successions, welcome more and more descendants. “Current law makes the concessionaire the benchmark forever and obliges anyone who wants to be buried in a sepulcher to prove their parentage with this concessionaire,” explains Christian de Cacqueray. “It can be very complicated if your grandfather bought the burial in 1850. If we add to that a context of diversification of matrimonial ties, it becomes madness. “
Family patterns have indeed changed: more divorces, fewer marriages, often blended families… All of these situations can lead to conflicts over the rights to be buried. “If you die before your brother, you will have your priority place in the concession, because it is the first-dying rule that applies”, explains Théo Clerc. If you were married, your spouse will also have his or her place reserved there. On the other hand, if you are not married to your partner, she will not have priority, “or you will have to justify links”, continues the expert.
The problem also arises with blended families. “If your mother-in-law buys the dealership for her and your father, she is the contract holder. You therefore do not inherit the rights of this concession, since they are only inherited by the direct children of the holder of the concession ”, gives Théo Clerc as a common example. By indicating having to regularly manage disputes between half-brother and sister who seek to regain the rights to the coffin of a parent.
Why is there an urgent need to reform?
When there is a conflict, mediation is not possible, it is necessary to go before a judge and the delays can be long. “For families, it’s complicated, because the funeral is an important element in the mourning process,” says Théo Clerc. “We come to inhuman situations, with spouses who do not meet in the same burial, deplores Christian de Cacqueray. People who had imagined something their whole life and realize at the last moment that it will never be possible. He deplores a very strict and not very humane application of the regulations. “Legalism and risk prevention are superior to anything, including the punishment of people. “
The director of the Catholic funeral service evokes a very powerful precautionary principle on the side of the municipalities, which want “to absolutely avoid finding themselves in an overhang in a family conflict”. On this delicate subject, the Defender of Rights suggests opening more widely access to “family” concessions to third parties, currently qualified as “foreigners”, by authorizing the joint ownership of concession deeds, without the municipalities are responsible for it.