Bring up the bodies (with apologies to Hilary Mantel)

Posted on December 19th, 2016

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The NSW Supreme Court recently dealt with an unusual dispute, as to who had the right to bury the body of a deceased person.

The plaintiff was the deceased’s sister and the defendant was the deceased’s de facto spouse. Both litigants, and the deceased were of Aboriginal heritage and one of the factors considered by the Court was the importance of cultural, spiritual and religious factors relevant to the place of burial in Aboriginal culture.

Both litigants genuinely held sincere views that the deceased should be buried in particular “country”. He had been born and raised in one part of NSW, but after forming his relationship with the defendant, moved to a different location where he and his partner had four children during a relationship of over 16 years.

The Court was unable to say that either of these “cultural” claim outweighed the other. It noted that the common law favoured the claim of a de facto partner over a sibling of a deceased and accordingly, while recognising any decision would make one litigant unhappy, adopted the common law position. It made orders permitting the surviving partner to determine the manner and place of the deceased’s burial.

The case does not establish any novel principle, although it is worth noting that had either of the ‘cultural’ claims been clearly superior, that may have displaced the common law position. It is something of a novelty because cases about the disposal of bodies are quite rare. As a sidenote, the barristers for reach party both appeared on a pro bono basis; and the Court made no order for cost in the proceedings:  Darcy v Duckett [2016] NSWSC 1756.

Tony Cavanagh Director at Mullane & Lindsay Solicitors NewcastleTony Cavanagh is a Director at Mullane & Lindsay Solicitors and practises extensively in Commercial dispute resolution and litigation, and employment law. If you require any assistance in these areas please contact Tony Cavanagh or contact our Newcastle or Sydney office. 

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