Marriage and divorce legally affects your name

After marriage, the married person can opt to use his single name or adopt the surname of the spouse. A married woman who used her husband’s surname during the marriage can revert to her single name after separation or divorce. But then again, she may still keep her married name even after separation or divorce.

In truth and fact, nothing can prevent a person from changing his name as he so chooses. However, it is recommended to register the change of name because some agencies require proof of the change such as when you apply for licenses or passports.

A person over the age of 18 years can register the change of name by going to the Birth, Deaths and Marriage Registry, filling up the forms and paying the fees.

Change the name of a child under 18

To change the name of a child under 18, the consent of both parents is required, except in situations where:

The child does not understand the meaning and implication of the change of name;

  • Both parents are deceased or cannot be found, or for some reason cannot carry out their parental responsibilities, in which case, the child’s guardian may apply; or
  • Only one of the parent’s details are recorded on the child’s birth certificate, in which case, that parent can apply; or
  • There is no other surviving parent, in which case, the surviving parent can apply; or
  • A court orders the change of name

Where both parents consent

Where both parents agree and consent to change the child’s name, they can apply to the Registrar of Births, Deaths & Marriages for registration of a change of name by completing the Application for Change of Name of the Child.

Where one parent refuses to consent

Where one parent refuses to consent to change the child’s name, or the parent’s whereabouts are unknown, a court order approving the change of name is required. The other parent can
apply to a court having jurisdiction under the Family Law Act to approve the change of name.

If changing a child’s name by Court order in the Federal Circuit Court, the Applicant will need to file an Initiating Application and an Affidavit setting out the reasons why the Applicant wants the child’s name to be changed.

The Applicant should also address the factors which the Federal Circuit Court will consider, such as:

  • The short and long-term effects of any change to the child’s name;
  • Any embarrassment likely to be suffered by the child if his or her name is different from that of the parent with whom the child lives or who has care and control of the child;
  • Any confusion of identity which may arise for the child if his or her name or is not changed;
  • The effect which any change of name may have on the relationship between the child and the parent whose name the child bore during the marriage or period of cohabitation;
  • The effect of frequent or random changes of the child’s name; and
  • The child’s wishes; and
  • The degree of maturity of the child.

The Applicant must cause the other parent (the Respondent) to be served in accordance with the Rules as soon as practicable after filing.

In the event the Applicant cannot serve the documents on the Respondent, the Applicant should apply for an interim order seeking substituted service or to dispense with service.

If the Respondent opposes the Application or proposes different orders, they should file a Response and an Affidavit, and serve the documents on the Applicant within 14 days of being served with the Application.

If the other parent refuses to complete the appropriate documents after the Court Order to change the name of the child has been made, a warrant for arrest can be sought to compel the parent to fulfil his or her parental responsibilities. Alternatively, that parent can seek an order that a Registrar is authorised to sign the necessary paperwork if the other party refuses to sign, under section 106A of the Family Law Act. The Applicant can avoid having to bring enforcement proceedings by seekinging the s 106A Order in the first instance

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Author

Alan Weiss

25th March, 2020

Alan Weiss developed aussiedivorce.com.au after he experienced himself how devastating divorce proceedings can be. I witnessed firsthand my own future security, and that of my familys, being destroyed by acrimonious and costly divorce litigation. I created aussiedivorce.com.au to help people avoid an experience like this and lose thousands of dollars. Instead the aussiedivorce.com.au system will assist them in getting on with their lives.