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It’s all in the name

As family lawyers we are often asked by parents whether they can change the surname of their children following the breakdown of a relationship or marriage. The simple answer is no – not without the express written consent of the other parent or a court order.

Increasingly in today’s society new families are formed and a mother takes on a new surname. A child’s surname can be an emotional subject for both parent and child. Children may be embarrassed to be known by a different name to the parent they live with, but the other parent may feel that changing surname suggests that they have a less important role in the child’s life.

In the absence of agreement, the parent wishing to change their child’s name can make an application to the court. The other parent must be served with the application and given an opportunity to have their say.

The court will generally be reluctant to change a child’s birth name as previously stated: ‘A surname given to a child at birth is not simply a name plucked out of the air. It is a biological label that tells the world at large that the blood of the name flows in its veins.’

The primary concern of the court in these cases is the child’s welfare and the court will not make the order unless it is in the child’s best interests. The wishes of the child, taking into account their age and understanding, is only one factor to be considered.

In modern society there is no stigma in children within a family being known by different surnames. However, if a child’s name is changed to that of a new partner the result is that their name no longer bears any reference to their biological make-up. This can be an unsatisfactory situation, not least because the new relationship could also break down.

Some children use a ‘known as’ name. This can be the surname of the new family unit but the legal position remains that the legal name will not be changed lightly by the courts, who are keen to preserve the biological and cultural reference afforded by a child’s surname.