What’s in a name?

I don’t believe a rose would be as nice if it was called a this­tle or a skunk cabbage.”

- LM Mont­gomery

Chang­ing an adult’s name

In Decem­ber 2015, Japan’s Supreme Court upheld a law dat­ing back to the 19th Cen­tu­ry that requires mar­ried cou­ples to have the same sur­name. This law is still in effect. The law appears gen­der neu­tral as a hus­band can choose to take his wife’s sur­name, although in prac­tice 96% of women in Japan choose to take the sur­name of their husband. 

In Aus­tralia, a per­son who mar­ries may choose to take his/​her spouse’s sur­name. This is not, how­ev­er, a legal require­ment. The mar­ried per­son can pro­duce his/​her Mar­riage Cer­tifi­cate to the rel­e­vant agency (for exam­ple, banks, Depart­ment of Trans­port, Depart­ment of Immi­gra­tion and Bor­der Pro­tec­tion, and so on) to have the doc­u­ment amend­ed, or offi­cial­ly apply to the Reg­istry of Births, Deaths, and Mar­riages (‘the Reg­istry’) before tak­ing their offi­cial Change of Name Cer­tifi­cate to the rel­e­vant agencies.

De fac­to cou­ples, includ­ing same sex cou­ples, may choose to take the sur­name of their part­ner if they wish, although they must offi­cial­ly apply to the Reg­istry if they wish to do so formally.

A per­son may also choose to change his/​her name if they are sep­a­rat­ed or divorced or for any oth­er rea­son. There is no prop­er­ty in a name and a per­son can­not force his/​her ex-spouse or ex-part­ner to cease using their name. How­ev­er, should they choose to change their name, a divorced per­son can pro­duce their Divorce Cer­tifi­cate to the rel­e­vant agency to have the doc­u­ment amend­ed to their maid­en name. With­out a Divorce Cer­tifi­cate, or if they have a Divorce Cer­tifi­cate but wish to change their name to some­thing oth­er than their maid­en name, they will need to offi­cial­ly apply to the Reg­istry for a change of name.

There is noth­ing stop­ping any­one from chang­ing their name infor­mal­ly and choos­ing to call him­self or her­self what­ev­er they may like, although it may be dif­fi­cult for him or her to have that name recog­nised on any legal document.

Chang­ing a child’s name

With chil­dren, the sto­ry is different.

Both par­ents must con­sent (through pri­vate dis­cus­sions or alter­na­tive dis­pute res­o­lu­tion) and sign the appli­ca­tion forms to the Reg­istry in order to change a child’s name.

If one par­ent does not con­sent, the only way to change the child’s name is to make an Appli­ca­tion to a Fam­i­ly Law Court. The Court will still have to con­sid­er on a case by case basis whether the change of name is in the best inter­ests of the child/​children before decid­ing to grant an Appli­ca­tion, and will con­sid­er fac­tors such as:

  • whether the name being pro­posed is a com­pos­ite (hyphen­at­ed) surname;
  • the rea­sons for the change;
  • any short term embar­rass­ment (by virtue of hav­ing a dif­fer­ent name to his or her moth­er or house­hold) against the long term effects;
  • any pos­si­ble con­fu­sion of identity;
  • the effect of the change on the rela­tion­ship between the child and the par­ent whose name the child orig­i­nal­ly bore;
  • the effect of ran­dom or fre­quent changes of name;
  • the child’s wish­es (if applicable);
  • the amount of time the child spends with the oth­er parent;
  • the degree of iden­ti­fi­ca­tion the child has with each of the par­ents (or stepparents);
  • the desire of the oth­er par­ent that their name be retained;
  • any advan­tages to keep­ing the name generally;

Even for a par­ent who has Court Orders award­ing him or her sole parental respon­si­bil­i­ty of a child, this is not suf­fi­cient for him or her to apply to the Reg­istry to change the name of the child. The Orders must specif­i­cal­ly allow for a name change in addi­tion to the gener­ic Order for parental responsibility.

If you have queries about this process, please con­tact one of our fam­i­ly lawyers for assistance.