What's in a name?

Date: Jun 04, 2010
Document Type: Newsletter

For almost all of us, our name is something which says who we are. Apart from being a bit like a personal identifier, it also can describe one's ancestry, one's ethnic background and whether we are married. Less so today, but in the past often immigrants would change their surname to an Anglo-Saxon name, and adopt an Aussie nickname for their forename. This certainly made spelling easier for those who had to deal with "those funny names", but also could signify an acceptance of their new society.

Traditionally children would have their father's surname, and on a marriage wives would adopt their new husbands' surname. The latter step is less universal than in the past, but most children are still registered with their father's surname. What happens after a separation of the parents?

With over a third of marriages failing, there are significant numbers of children involved, and the vast majority live with Mum after the separation. Sometimes a separated mother may revert to the use of her maiden name, and if she remarries she is quite likely to assume her new husband's surname. If she has children by that relationship they are likely to use their father's surname.

It is by no means unusual to find a household where Mum and Dad and their child have one surname, and mum's child by her first marriage has a different surname, that of the natural father. What happens if Mum wants that child to use her or her new husband's surname? - not exactly an uncommon wish.

Over the years the Family Court has established some principles about this situation, and the two most significant are that she cannot just do this without the father's approval, and the second is that the Court will look at whether the change is in the best interests of the child. Some of the factors a Court will consider are:

  • The effects of a change on the child and other people involved;
  • Any embarrassment which the child may suffer if its name is different from that of its day to day carer;
  • Any confusion the child may suffer from a name change;
  • The effect of a name change on the relationship between the child and the parent whose name the child will lose;
  • Advantages and disadvantages of a change;
  • The relationship and identification between the father and child;
  • The child's wishes, if the child is mature enough;
  • The father's wishes; and
  • The child's identification with its mother, step-father and any step-siblings.

In today's society it is probably fair to say that the "embarrassment factor" is far less relevant than it would have been a generation ago – there are so many households where there are more than one surname, and schools are quite used to a mother and her child having different names. It is more likely to be a factor between half-siblings.

History in the Courts shows that the Courts are more likely to permit a name change where there is little contact between father and child, and a close relationship with a step-father. However one thing to remember is that Courts traditionally are concerned where people take matters into their own hands. A name change does require permission, so if you want to change a child’s name – or stop a change – you will need either an agreement or Court approval.

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