Rainscourt Family Law Solicitors

Changing names of children after divorce

“Each generation wants new symbols, new people, new names. They want to divorce themselves from their predecessors.”

The OED helpfully reminds us that “to divorce” can of course mean not just to legally dissolve a marriage, but also separate, sever, detach, which is the version of the word used in this quote by Jim Morrison.   It may be the case that a spouse who is seeking a divorce is not just seeking a legal dissolution, but is also seeking the additional detachment that a name change can provide, not just for themselves, but for their children too.

An adult can choose to change their own name at any time, but may need the help of a change of name deed to provide proof to official agencies.

If parents are not in agreement about changing names of children after divorce then the parent seeking to change the name will need to bring the issue to court for determination.

The case of Re W* came before the Court of Appeal this summer, to determine whether the court had been right to order that a 1 year old child’s name should be changed to add an additional middle name, that of his father.  The judgment in that case helpfully set out the legal test which a court will follow when determining a change of name issue**.  However, we are reminded that “The test is welfare, pure and simple”: the welfare of the child is paramount.  In Re W the mother’s appeal against the inclusion of the new middle name was successful, as the initial judge had been found not to have followed the test below, and perhaps crucially, the father had failed to attend the appeal hearing as a protest against the family courts, and the role of those courts in his child’s life.  The judge concluded that “For this court to leave D’s name-change intact may have adverse welfare implications in a circumstance where the father has walked out of the child’s life.” So the court allowed the appeal, and changed the name back.

**The legal test

(a) If parents are married, they both have the power and the duty to register their child’s names.

(b) If they are not married the mother has the sole duty and power to do so.

(c) After registration of the child’s names, the grant of a residence order obliges any person wishing to change the surname to obtain the leave of the court or the written consent of all those who have parental responsibility.

(d) In the absence of a residence order, the person wishing to change the surname from the registered name ought to obtain the relevant written consent or the leave of the court by making an application for a specific issue order.

(e) On any application, the welfare of the child is paramount and the judge must have regard to the s1(3) criteria.

(f) Among the factors to which the court should have regard is the registered surname of the child and the reasons for the registration, for instance recognition of the biological link with the child’s father. Registration is always a relevant and an important consideration but it is not in itself decisive. The weight to be given to it by the court will depend upon the other relevant factors or valid countervailing reasons which may tip the balance the other way.

(g) The relevant considerations should include factors which may arise in the future as well as the present situation.

(h) Reasons given for changing or seeking to change a child’s name based on the fact that the child’s name is or is not the same as the parent making the application do not generally carry much weight.

(i) The reasons for an earlier unilateral decision to change a child’s name may re relevant.

(j) Any changes of circumstances of the child since the original registration may be relevant.

(k) In the case of a child whose parents were married to each other, the fact of the marriage is important and I would suggest that there would have to be strong reasons to change the name from the father’s surname if the child was so registered.

(l) Where the child’s parents were not married to each other, the mother has control over registration. Consequently, on an application to change the surname of the child, the degree of commitment of the father to the child, the existence or absence of parental responsibility are all relevant factors to take into account.

*[2013] EWCA Civ 1488

**Re W, Re A, Re B (change of name) [1999] 2 FLR 930

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