Co-Ownership and Burial Rights

Disputes concerning burial rights arise only exceptionally before the Maltese courts. More exceptional still are cases in which such questions intersect with the law of co-ownership and the limits of a co-owner’s right of use over property held in common. One such case was App. Ċiv. 1117/2022/1AB, decided by the Court of Appeal on 26 March 2026. Names have been omitted out of respect for the sensitivity of the case.

The proceedings concerned a grave held pro indiviso by two co-owners. The plaintiff sought judicial declarations to the effect that, as owner of an undivided half share in the grave, she was entitled, by virtue of Article 491 of the Civil Code, to make use of it and, specifically, to bury therein her deceased former husband. The claim was resisted by the respondent, who opposed the proposed burial on both legal and factual grounds. The First Court rejected the plaintiff’s substantive claims, and the matter was brought on appeal.

A principal issue before the Court of Appeal was whether the appellant possessed the requisite juridical interest to maintain the action. The Court affirmed the approach adopted by the First Court and held that co-ownership of the grave alone did not confer upon the appellant the legal standing necessary to determine the place of burial of her former husband. In reaching that conclusion, the Court attached significance to the fact that, at the time of the deceased’s death, the appellant had already been legally separated from him and was not his heir. These considerations were treated as materially relevant to the absence of any sufficient legal authority on her part to insist upon his burial in the jointly owned grave.

The judgment is also of interest for its treatment of Article 491 of the Civil Code. The Court accepted the general proposition that a co-owner may use common property according to its destination. However, it emphasised that this faculty is not absolute. It remains circumscribed by the correlative rights of the other co-owner and may not be exercised in a manner prejudicial to those rights. In that assessment, the Court considered not only the practical limitations arising from the finite physical space of the grave, but also the evidence concerning the turbulent relationship between the respondent and the deceased. That factual background was treated as relevant to the prejudice that the respondent would suffer were the proposed burial to be allowed. On the facts, the Court accepted that the burial would give rise to both practical and emotional prejudice.

The case also engages the civil law notion of ius sepulchri, namely the right of burial in a particular tomb. The Court’s reasoning reflects the principle that such a right cannot be presumed in favour of a third party merely because one of the co-owners wishes to extend the use of the grave to him. The deceased had no proprietary entitlement in the grave, no relevant familial connection to the source of title, and no demonstrated personal or testamentary right to burial therein. In those circumstances, no ius sepulchri could arise in his favour.

Perhaps most significantly, the Court recognised that a grave cannot be assimilated to ordinary property. Burial sites engage considerations which go beyond the merely proprietary, including dignity, permanence, family memory, and the deeply personal character of burial itself. For that reason, general principles of co-ownership must be applied with due regard to the particular nature of the subject matter.

The Court of Appeal accordingly rejected the appeal. It held that the appellant lacked sufficient juridical interest to seek the burial of her former husband in the jointly owned grave, and that her rights qua co-owner could not prevail over the respondent’s opposition in the circumstances of the case. The judgment illustrates that, even where proprietary rights are established, their exercise remains conditioned by the nature of the thing, the limits inherent in co-ownership, and the legitimate interests of others.

Partner Carlos Bugeja acted for the respondent.