A child’s surname can be a hot issue for separating couples. TGB's Family Lawyer Jane Miller discusses the legal options.
A child’s surname can be a hot issue for separating couples. TGB’s Family Lawyer Jane Miller discusses the legal options.
When a child is born in South Australia the parents of the child register his or her name at the Office of Births, Deaths and Marriages. In most instances the application to register the birth is signed by both parents of the child. However, in some cases, only the mother of the child registers the child’s birth, which may impact upon entitlements to child support payments from the father.
The legal surname of the child is the surname nominated by the registering parent or parents at the time of the child’s birth. This is often the surname of the child’s father.
In the event the relationship between the parents subsequently breaks down, then one of the parents of the child may wish to change the child’s surname. This usually happens if the mother has adopted the father’s surname at the time of marriage, and subsequently wishes to revert to her maiden name after separation. So that the child does not have a different surname to the mother in that instance, the mother might then seek to change the child’s surname to her own maiden name or hyphenate her maiden name with the father’s name.
In other situations, the mother of the child may remarry and adopt her new husband’s surname and seek that the child from her first marriage also adopt her new husband’s surname. This is particularly the case if the father of the child is estranged from the child and the child views her mother’s second husband as his or her paternal figure.
How to change a child’s name if both parents consent
In the event that the child’s parents are listed on the child’s birth certificate and both consent to a change of name, then the parents may jointly register an application to register a change of name at the Office of Births, Deaths and Marriages. The application must be signed by both parents, produced with appropriate supporting documents and the application fee. Visit ocba.sa.gov.au for further details.
How to change a child’s name if both parents do not agree
In the event one parent wishes to change a child’s name, and this is opposed by the other parent, then it is advisable the parties participate in mediation to try to resolve the matter. Depending upon the age of the child, the parties may consider that the child also participates in the mediation so they may take into account any views expressed by the child, especially if the child is a teenager.
In the event mediation does not resolve the matter and it remains in dispute then the parties may ask the Family Law Courts to determine the dispute. In such a case the court will consider the child’s best interests as the paramount consideration and will make an order either permitting or refusing the proposed name change. In the event the name change is permitted then the order of the court must be produced to the registry so it may proceed with the change without the mutual consent of the parents.
It is advisable that parties seek independent legal advice before proceeding with an application to the Family Law Courts. An experienced family lawyer will be able to provide advice as to the court processes and the likely outcome of such litigation.
In some instances after separation a parent informally adopts a new name for the child. In these instances the parent does not formally seek to register a change of name for the child, but effectively assumes an alias for the child. This can cause difficulties when dealing with organisations such as the Department of Education, Medicare and the Australian Passport Office. Whilst the child might have assumed an informal name, they cannot be legally recognised by any name other than that on their birth certificate without a formal change of name registration.
In cases where a parent has informally adopted a new name for the child without the consent of the other parent, the other parent may seek an injunction from the Family Law Courts to prevent any name being used for the child other than the child’s legal birth name. In the event that such an injunction is sought it is advisable that parties receive independent legal advice regarding the matter.
TGB is South Australia’s largest family law firm. For legal advice about a child surname matter, or any other family and divorce issue, contact your nearest TGB office.