What’s in a name?
Legal Executive Vikki Porthouse explores the legal aspects of a name change.
I was recently asked for advice from a wife contemplating a divorce on the issue of changing her surname.
The traditional position
The official position is that where a wife took her husband’s surname upon her first marriage, she can automatically revert to her maiden name when Decree Absolute (the final decree in divorce proceedings) is declared by the court. This is very much the traditional scenario. Most organisations will accept production of the Decree Absolute as evidence of the change of name.
The same applies to same-sex marriages and civil partnerships.
Change of name deeds
If the wife wishes to adopt a completely different surname at the time of Decree Absolute, or if the wife was using a name other than her maiden name at the time of marriage (an ever increasingly common scenario) a change of name deed will be required. Similarly, if a wife just can’t wait for Decree Absolute a change of name deed will be required.
Of course it’s not only wives who change their names upon marriage and/or divorce. If a husband has changed his surname upon marriage a change of name deed will be required to revert back to the pre-marriage surname or to adopt an entirely new surname.
A change of name deed is a formal document that records the old name and the new name and is signed by the individual in both old and new names and witnessed. Burnetts offer this service for a fixed fee of £90.00 inc. VAT.
Changing a child’s name
The situation here is more complex. Everyone who has parental responsibility for the child must consent to a change of name for the child. It’s advisable to get this consent in writing. Parental responsibility is defined in the Children Act 1989 as “all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property”. Married parents and unmarried mothers automatically acquire parental responsibility at the time of birth. Unmarried fathers acquire parental responsibility if they are named on the birth certificate, enter into a parental responsibility agreement or have the benefit of a parental responsibility order.
In circumstances of one a parent wanting to change a child’s surname following a divorce or separation, in most cases the other parent will not agree. It is common where there is a dispute for it to be resolved by a double-barrelled surname, with one surname from each parent. This can be resolved by negotiation, mediation or as a last resort by court proceedings for a specific issue order under the Children Act 1989.
Consideration needs to be given to the impact on the child of a change in name and how this may affect their relationship with each parent, siblings, and half-siblings, wider maternal family, wider paternal family and how they see themselves within their friendship groups. Consideration should be given to the circumstances at the time of the proposed change and the likely circumstances for the future.
It is very unusual for a court to sanction a change to forename. For example, a recent case where a local authority invited the court to exercise its authority to prevent a mother from giving her children unusual names was automatically transferred to the High Court. The names the Mother had chosen for her twin children were “Cyanide” and “Preacher”. Even at this extreme it was far from clear cut as to whether or not the court could act in interference with the mother’s parental responsibility. Fortunately for those children the court was satisfied that it did have the power to intervene but that it would only be exercised in extreme cases and with the sanction of the High Court. For anyone interested in reading more the case was C(children) 2016 EWCA Civ 374.
For further information please contact Vikki Porthouse on 01228 552222.
About the author
Vikki is a Legal Executive in the family team.