Pub­li­ca­tions

What’s in a name? Chang­ing your child’s sur­name after sep­a­ra­tion or divorce

Your child’s name can be changed where you have the con­sent of the oth­er par­ent and the change of name is in the child’s best interests. 

Change of name with­out oth­er parent’s consent 

In Chap­man and Palmer, the Full Court of the Fam­i­ly Court held that a court will not pre­vent a par­ent from chang­ing their child’s sur­name unless it is sat­is­fied that the change occurred with­out the con­sent of the oth­er par­ent and the change does not pro­mote the child’s wel­fare. These days, the idea of pro­mot­ing the child’s wel­fare is expressed in terms of what’s in the child’s best interests”. 

Chap­man and Palmer involved an appeal by the father of two chil­dren. The par­ties were sep­a­rat­ed, a divorce had been grant­ed and the par­ties had joint cus­tody of the chil­dren. Both the moth­er and the father had remar­ried. The moth­er then enrolled the chil­dren at school with the sur­name of her new hus­band, with­out the con­sent of the children’s father. 

Rel­e­vant fac­tors in con­sid­er­ing whether a change of name is in the child’s best interests 

The court out­lined sev­er­al fac­tors in Chap­man and Palmer that it will take into account in rela­tion to whether it will pre­vent a par­ent from chang­ing a child’s name. These fac­tors include:

  • the wel­fare of the child is the para­mount consideration, 
  • the short and long term effects of the change of surname
  • any embar­rass­ment to the child from hav­ing a dif­fer­ent sur­name to the sur­name of the par­ent with whom they live 
  • any con­fu­sion of iden­ti­ty which may arise for the child 
  • the impact of the name change on the rela­tion­ship between the child and the par­ent whose name the child pre­vi­ous­ly bore
  • the effect of fre­quent or ran­dom changes of name

In most instances, you will not be able to legal­ly change your child’s sur­name unless you have the signed agree­ment of the oth­er par­ent or have obtained a court order per­mit­ting you to do so. This is the case even if you have sole parental responsibility. 

To change a child’s name, you will need to do so through the Reg­istry of Births Deaths & Mar­riages. Most state reg­istries will not per­mit you to change the name with­out the oth­er parent’s signed con­sent or an order of the court. 

To obtain an order to change a child’s name, you will need to demon­strate that the change is in your child’s best interests.