Funeral in an international context

Fri 15 February 2019, Philippe Ropenga Funeral

The French Cour de cassation, i.e., the supreme court that deals with civil, commercial, and criminal cases, has decided a case about the freedom of funeral rites¹. It not only is interesting to read because of the solution it provides but also for the reasoning. The basic logic that is behind international law has skilfully been applied to deal with the personal circumstances of the deceased. The Court has managed to reach a straightforward solution despite factual uncertainty. Let us see how international logic (1) has been applied to take personal circumstances (2) into account.

1 The international logic

International logic is based on conflict rules (1.1). Here, as it sometimes happens, it also is supported by a hustler (1.2).

1.1 The conflict rules

Conflict rules are abstract rules that determine what fact triggers the application of a law or designates a court. The deceased was a Moroccan citizen with a Muslim background. The fact that he was an atheist is beyond dispute. He was living unmarried in France with a female partner at the time of death. He has not left any instructions regarding his funeral. His partner agreed with the overage children of the deceased, born from a previous relationship, to organise a ceremony at a Roman Catholic Church. They decided to incinerate him. The mother of the deceased and his siblings claimed that this decision was unlawful. They argued that the organisation of a funeral was related to personal status, and that the judge thus had to apply Article 1 of the Franco-Moroccan Convention on personal and family status, and on judicial cooperation². The said article states that the law of nationality has to be applied in matters related to personal status. Hence, since the deceased was a Moroccan citizen and not a French one, Moroccan law should have been applied by the appeal judge. The funeral should follow the Muslim rite because Islam is a state religion in Morocco. The other members of the family responded that it was not a matter of personal status and that the freedom of funeral rites was fundamental and protected by a French statute that dated back to 1887³ and that applied to any death on the French territory notwithstanding the nationality of the deceased. The Head of the Court of Appeal followed this reasoning.

Let us now see how the concept of loi de police has been applied in this case by the Cour de cassation.

1.2 The hustler

When a conflict rule is applied, there usually is a thorny question to solve, that of renvoi. Determining what trigger to pull is only the beginning of the process. One has to look at the bullet to see where it goes. Its trajectory may not be linear at all. The law that is initially designated by the conflict rule is applied, and it may well designate in turn the law of a different country. A loi de police prevents the application of foreign provisions that are against public policy. The Cour de cassation has mentioned that the 1887 act was a loi de police. Several posts have dealt with forced heirship, and it has been seen that it was not a matter of public policy in French private international law notwithstanding the fact that it was a key element of French law.⁴ One can see here that a matter of public policy is not always easy to notice. Public policy has been used in this case to prevent Moroccan law from imposing anything incompatible with the deceased's wishes.

It has been seen that courts had to apply conflict rules. When a court applies a loi de police, public policy prevails over conflict rules. The Court had to pay the highest attention to the deceased's wishes. It had to look closely at personal circumstances in this case.

2 The personal circumstances

The Court has managed to overcome a fuzzy context (2.1) by adopting a fussy interpretation (2.2) of the deceased's personal circumstances.

2.1 Fuzzy context

The main issue here is that the deceased has not written anything regarding his funeral. The family members do not agree on the question. Furthermore, the main source of evidence is testimony. Any lawyer who deals with successions knows well that witnesses are always partial because they tend to rely on their own feelings about the deceased when they testify even when they act in good faith. Moreover, even if the family should be aware of what the deceased desired, it is not always the case, and friends may come into play to make the global picture even fuzzier. The Cour de cassation does not re-examine pieces of evidence but makes sure that the Court of Appeal has correctly taken evidence into account when applying the law. This French supreme court approved the decision of the Head of the Court of Appeal and gave two indications that help to handle such a case.

Let us see how the Cour de cassation overcame fuzziness.

2.2 Fussy interpretation

First, freedom of funeral rites is less restricted than testamentary freedom, not only because testamentary freedom is not infinite, but also because will drafting is used to ensure that the wishes of the deceased are certain.⁵ Freedom of funeral rites is not restricted by strict limits regarding certainty. Furthermore, the Cour de cassation found that the people who were the most likely to know what the deceased wished for his funeral were those who lived with him before his death. Testimony by his partner and sons therefore prevailed over pieces of evidence submitted by his mother, his sister, and his brothers. This interpretation also was supported i.a. by the fact that the deceased was not opposed to the christening of his daughter. According to the daughter's godmother, the deceased was very happy at the ceremony.

It has been seen that in case of a fuzzy context, there were elements that could guide the practitioner, such as the nature of the relationships between that deceased and other people. Witnesses who have had a tight relationship with the deceased before his death are considered to know best what the latter wished. Evidence has to be used in order to support greater freedom regarding funeral rites.

In brief, one should pay a great attention to lois de police since public policy matters are not always easy to notice, as this case shows, while they may change the result of conflict rules.

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