Nectaria is an Associate Solicitor, practising primarily in family law matters, but also in conveyancing, Wills and Estates and Crime. Nectaria’s experience can help you understand how the law will apply to your individual situation. Nectaria has completed a Bachelor of Laws with a Bachelor of Arts majoring in Criminology and graduated from Macquarie University with second-class honours.
Getting a name change after divorce reverses the tradition of a married couple having the same name.
For many people, this is a significant part of the separation process.
Making a surname change after marriage has long been customary for one or both spouses.
Women especially tend to be known by their husband’s surname after getting married, although today fewer women are choosing to take their partner’s name than in the past.
This is usually not a problem, and assuming a married partner’s name may be initially time-consuming when changing documentation and contacting institutions but is not especially complicated.
When a married couple chooses to divorce, the importance of surnames comes into play again.
Many women who adopted their husband’s surname upon marriage choose to revert to their maiden name after separation or divorce.
There are various reasons why someone may wish to keep their former spouse’s name or revert to their birth name.
However, names are not legal property and no one can be forced to use or to stop using their ex-partner’s name.
Changing A Child’s Name After Divorce
Marriage and divorce are the most common reasons why a person changes their own name, but separation and divorce can also mean some parents decide to change their children’s surnames as well.
In Australia, 96 per cent of children are given their father’s surname when they are born.
When relationships go awry, parents may feel it is important to change the child’s name.
Changing your surname after divorce is a decision that does not need anyone else’s input, but, as with other major long-term decisions for a child, both parents must agree to change their child’s surname.
This is the case even if the court has made orders for parental responsibility.
Unless the parental responsibility orders specifically mention changing the child’s name, the name change is unlikely to be accepted without the signed consent of the other parent or an additional court order.
One parent can suggest to the other the name change for their child and an agreement may be reached through private discussion or through a form of alternative dispute resolution.
Both parents will then need to sign the change of name for their child at the Registry of Births, Deaths and Marriages.
If the child is aged 12 or over, they must also agree to the surname change.
It is possible for a parent to make an application by themselves to change their child’s name if they are the only parent listed on the child’s birth certificate or if the other parent has died.
However, if the parents cannot come to an agreement, the matter must then be taken to court.
The court considers each application strictly on a case by case basis, so although some parents succeed in obtaining a court order to change their child’s name, even cases that appear very similar can have different results.
The court will reach a decision based on many considerations, including:
- The reasons for the name change
- The desire of the other parent that the child’s name remains the same
- Whether the proposed surname is double-barrelled (hyphenated)
- Any possible confusion of identity
- The child’s views, depending on their age and maturity
- The effect of the name change on the child’s relationship with each of their parents
- The amount of time the child spends with each parent
- Any short-term embarrassment weighed up against the long-term effects
- Any advantages to keeping the current name
How Can I Get A Name Change After Divorce
The method of getting a name change after divorce depends on how it was changed in the first place after marriage.
There is a difference between assuming a different surname and legally changing one’s surname.
In Australia, married people have the legal right to be known by their spouse’s surname or by a name combining their own and their partner’s, whether or not it is hyphenated.
Because of this, it is not necessary to legally change your name at the Registry of Births, Deaths and Marriages after getting married if you are taking your married partner’s name.
Most institutions and organisations, such as banks, government departments, workplaces and educational institutions, should accept a marriage certificate as proof of a name change.
You may be required to fill in forms detailing the name change as well as renew your passport and driver’s licence.
Updating your passport and driver’s licence first is a good idea as these documents can then be used as proof of your name in other places.
If you changed your name only by providing your marriage certificate as evidence, then this means you assumed your partner’s name, rather than making a legal name change.
Therefore, you are still entitled to be known by your original surname, regardless of whether you are changing your surname after divorce, separation or at any other time, including while you are still married.
Even if the divorce is not yet finalised, you can revert immediately to your birth name.
In these circumstances, after divorce, it is only necessary to produce your birth certificate and marriage certificate at the organisations and institutions to which you belong in order to change your name.
This proves the connection between your identity and your surnames.
If you have been married multiple times and have been known by multiple names you will need to provide the other marriage certificates as well as your birth certificate when you are changing your surname after divorce.
Some institutions and organisations may request a copy of your divorce order to prove your divorce.
Proof of divorce can be obtained through the Federal Circuit Court.
Legally Changing Your Name After Divorce Or After Marriage
The above is only applicable to people who were married and assumed their partner’s name without registering a legal name change.
A person in a de facto relationship wishing to take their partner’s name must apply to the Registry of Births, Deaths and Marriages in their state in order to change their name.
When a de facto couple separates and one party wishes to revert to their former name, they must then make another legal name change.
The same applies to someone who was married and legally changed their name, either to their spouse’s surname or a different surname altogether.
Having a name change after divorce is possible at the New South Wales Registry of Births, Deaths and Marriages if one of the following points applies to you:
- Your birth is registered in NSW
- You were born overseas and have been resident in NSW for the three consecutive years immediately preceding your application
- Your birth is not registered in NSW but a protection order has been made to protect you or children from domestic violence
Proof of a registered name change is always accepted by institutions and organisations when you go about changing your name after divorce.
Changing Surnames Around The World
Different countries have different laws, regulations and customs for the changing of surnames after marriage, which then affects how and if a person can change their surname after divorce.
In Australia, there is no legal requirement for men or women to take their spouse’s surname, whether they are married or in a de facto relationship.
Despite this, over 80 per cent of women in Australia take their husband’s name after marriage.
After a divorce or separation, many people can and do continue to use their married name.
On the other hand, having a name change after divorce or after marriage can have consequences for your professional life, and therefore some people avoid a name change altogether.
In United States, the percentage of women who keep their own surname is higher, at 30 per cent.
For married couples in Japan, a law almost two centuries old states that married spouses must have the same surname.
Although it does not specify which spouse has to change their name, 96 per cent of Japanese women take their husband’s surname after marriage.
The province of Quebec in Canada has a law from 1981 that prevents women from taking their husband’s surname.
This is similar to many countries in Europe, including Greece and Belgium.
In France, women cannot legally change their name after marriage but can use their husband’s name socially or informally, and in the Netherlands, they must always use their birth name on any documentation.
The law in Italy says that women cannot legally change their surname but can add their husband’s name to their own.
In other countries, it is the local custom for women to keep their birth name, just as it is customary in Anglophone countries for women to change their name.
Married women in Malaysia and Korea tend to keep their original name, as do women in many Spanish-speaking countries, such as Spain and Chile.