What’s in a name? Changing a name in the family law context

Names are an important part of our identity and as family structures change, people may consider changing their name or the name of a child. However, there are processes and restrictions to be aware of when considering this.

There is different legislation in each State governing the registration of names. In Western Australia, this is the Births, Deaths and Marriages Registration Act 1998 (WA) (“the Act”).

Registering a change of name

To officially change a person’s name, it is necessary to apply to the Registry of Births, Deaths and Marriages in the State or Territory in which they were born.

In Western Australia, once the application is approved, a Change of Name Certificate can be issued to authorise the use of the new name.

Prohibited names

Under the Act, a name is prohibited if the Registrar is of the opinion that:

1. The name is obscene or offensive;
2. The name could not practicably be established by repute or usage because it is too long, includes symbols without phonetic significance or for some other reason; or
3. The name is contrary to public interest for some other reason.

Marriage and separation

After being married, a person can assume their spouse’s surname as a matter of custom without applying to legally change their surname. It is typically sufficient to rely on the marriage certificate when seeking to change their surname on documents with institutions, rather than applying to formally change their name.

After separating or being divorced, for a person to revert to their surname at birth, it should only be necessary to formally change their name if they did this upon marriage. However, there is no legal basis for preventing a person from continuing to use their spouse’s surname if they wish. In any event, they could choose to officially change their name to any surname that is not prohibited for some other reason.

Naming a child

Choosing a name for a baby is one of the first big decisions a parent has to make, typically when in a state of exhaustion!

In Western Australia, the parents of a child are jointly responsible for having the child’s birth registered. However, the Act provides that the Registrar can accept a birth registration statement signed by one parent if satisfied that it is impracticable for the other parent to sign the application due to death, disappearance, ill health, unavailability or the need to avoid unwarranted distress.

The birth must be registered within 60 days and failing to do so attracts a penalty of $1,000.

The birth registration statement must state the name of the child. The Act states that “the name is a matter of choice” for the person or persons lodging the application and it is not necessary for:

1. The name to be made up of both a surname and a given name or given names; or
2. The surname to be the same as that of a parent of the child.

However, the Registrar instead may assign a name to a child if:

1. The proposed name is prohibited; or
2. The birth registration statement is lodged by both parents and they satisfy the Registrar that they are unable to agree on the child’s name.

Changing a child’s name

In Western Australia, a child’s name can only be changed once in each 12-month period unless there are exceptional circumstances.

To change a child’s name, the application must be made jointly by both parents unless:

1. The applicant is the sole parent named in the registration of the child’s birth;
2. One parent is dead; or
3. Both parents are dead, cannot be found or cannot exercise their parental responsibilities for some other reason.

If the child is over 12 years of age, it is also necessary for the child to consent to the proposed name, unless the child is unable to understand the meaning and implications of the change.

After a separation, disputes sometimes arise about whether the name of a child should be changed, such as to match the surname of their primary carer or half-siblings.

If a court order or parenting plan has previously been made for parents to have equal shared parental responsibility after separation, then the parents must consult with each other and come to a joint decision about changing a child’s name. Decisions about a child’s name are specifically included in the legal definition of a “major long-term issue”.

Whether or not they have equal shared parental responsibility, if parents cannot agree about changing a child’s name, then it may be necessary to apply to the Family Court for a determination on this issue. If the Court makes an order to resolve a dispute about a child’s name, the Registrar must assign the child’s name accordingly.

In deciding whether to change a child’s name, the paramount consideration for the Court is the child’s best interests. This will require consideration of the factors set out in s 60CC of the Family Law Act 1975 (Cth) for married parents or s 66C of the Family Court Act 1997 (WA) for unmarried parents. Factors of particular relevance in such cases may include:

1. The views of the child (if the child is mature enough to have views based on relevant considerations);
2. The nature of the child’s relationship with each parent and other persons;
3. The likely effect on the child; and
4. The maturity, sex, lifestyle and background of the child.

However, the Court can also give consideration to “any other fact or circumstances the court thinks is relevant”. In previous cases about name changes, the Court has also considered factors like:

1. Any effect that the name change may have on the child’s relationship with the person who has the same name;
2. Any embarrassment or practical difficulty that may arise from the child having a different surname to their primary carer; and
3. Any confusion of identity that may arise for the child whether or not their name is changed.

In Reynolds & Sherman (2015) FLC 93-659, the parents were in a relationship for about one month and the child lived with the mother from birth. They were in dispute as to whether the child should have the mother’s surname only or a hyphenated surname. The mother relied on a list of points as to why hyphenated names can be problematic, which the Court accepted were not simply matters of “mere convenience” and were relevant to the best interests of the child. The Court also referred to factors such as possible embarrassment, the child’s identity and the mother’s concern about the possibility of the father disengaging from the child in the future as being potentially relevant to the determination.

The Court ultimately decided that the child’s name should be hyphenated, even after two appeals by the mother. It was made clear in the cases that there is no presumption either in favour of or against hyphenated names. The Court also commented that “the experience of this Court demonstrates it is now common for children to have a different surname from at least one of their parents, even in intact relationships”.

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About the Author: Kate was admitted to the Supreme Court of Western Australia in 2012 and has practised family law for many years. She is motivated to help clients achieve positive outcomes as efficiently and amicably as possible but also has experience in court proceedings.