What’s in a Name?

In recent news, Jenifer Lopez (aka the iconic J Lo) has changed her name to Jennifer Affleck following her marriage to actor, Ben Affleck.

Jennifer’s change in surname has caused a considerable stir in the media. Given the media frenzy, it makes you think about naming disputes in family law and most particularly:

1. What happens after you separate? Can you keep your married name, or are you required to revert to your maiden name?
2. What happens if parents cannot agree on their child’s surname following a separation?

Adult Surnames Following a Separation

In Australia, a person who marries may choose to take his/her spouse’s surname; although, it is not a legal requirement to do so. De facto couples, including same sex couples, may also choose to take the surname of their partner, however, they will be required to apply to the Births, Deaths, and Marriages Registry if they wish to do so formally.

So, in the event of separation what happens to your surname?

For many people, following a breakdown in marriage, changing your surname can be a significant part of the separation process.

As part of the process, however, it is important to be aware that names are not legal property. Therefore, a person cannot be forced to use or to stop using their former spouse’s name.

If you are divorced and wish to change your name back to your maiden name, you will simply need to produce a copy of the Divorce Order to the Registry. Otherwise, you simply complete a change of name form on the Registry’s website.

Ultimately, it is your surname and the decision lays with only you.

Children’s Names Post Separation

Interestingly, in Italy the Constitutional Court has just recently ruled that Italian children should be given the surname of both parents, overturning the tradition by which all newborns are automatically named after their father. The Constitutional Court found the current tradition is “discriminatory and harmful to the identity of the child”.

Things are a little different in Australia. In Australia, a child must take the surname of their parents (which surname and whether a combination of both is at the parent’s discretion).

Where issues most commonly arise with respect to children’s names is following a separation. ?

Separation and/or divorce can give rise to parents wanting to change their child(ren)s surnames. Changing a child’s name is a decision both parents should make and agree to, as with other major long-term decisions. ?

If there is a dispute as to the child’s name, at first instance, parents should try resolving the naming dispute with a Family Dispute Resolution provider (unless there are family violence concerns). If a resolution cannot be reached and court proceedings are issued, the Court will consider a range of factors in determining whether to change or keep the child’s surname, such as:

• The welfare of the child;
• The short and long-term effects of the change in the child’s surname;
• The short and long-term advantages of the child’s name staying the same;
• Any embarrassment likely to be experienced by the child if their name changed;
• Any confusion of identity that may arise for the child if their name is changed or is not changed;
• The amount of time the child has with both parents;
• The effect which any change in surname may have on the relationship between the child and the parent whose name the child bore during the marriage; and
• The effect of frequent or random changes of name and if there has been changes of your child’s name in the past.

Usually, the Court will also take into consideration the following:

• The parent’s reasons for resisting or requesting a name change;
• Any customs regarding the use of a family name in accordance with particular cultural customs; and/or
• The degree of harmony or disharmony the change of name may generate between disputing parents.

You should seek advice from a family lawyer before proceeding with any Application to the Family Law Courts.?

by Phoebe Smillie