When parties marry it is common for one party to take the other’s surname. This is a longstanding tradition that identifies the parties as being married, and in doing so, ensures that when a child of the marriage is born all parties share the same surname and are readily identified as a family unit. It’s not a rule and it’s not necessary, but it is common.
So what happens to a child’s surname when a marriage breaks down and the party who changed their name at marriage decides to revert to their former, or another, name?
While that party can revert to using their former, or another name with nominal fuss, they cannot change their child’s surname simply to suit.
Where a child’s name is changed by common usage this is not legally enforceable and is likely to cause longer term issues, such as when enrolling the child in school or opening a bank account for the child. The problem is that the child will be legally known as the name that is registered on their birth certificate, regardless of what name they actually use.
If both parents consent to changing their child’s name, this can be easily done through the Births, Deaths and Marriages Registry. If the child is 12 years of age or older, they must also agree to the change unless an order is made by the Court. There are also limits on how many times a child’s name can be changed.
It is possible for one parent to change their child’s name without the consent of the other parent, if they have an order that grants them sole parental responsibility for that child. It is important to understand though that there is a presumption in the Family Law Act 1975 (Cth) that parents generally should have equal shared parental responsibility for their children. Therefore, orders giving one parent the power to make long term decisions for a child are not common.
If there is dispute and one parent wishes to make an application to the Court to force a name change, Section 60I of the Family Law Act 1975 (Cth) sensibly stipulates that the parties must first attend mediation and make a genuine effort to resolve their dispute prior to commencing Court proceedings.
If the parties are still unable to reach agreement following mediation, application can be made to the Federal Circuit Court of Australia to seek an Order permitting the child’s name be changed. The Court will only make such an order if it is considered the name change is in the child’s best interests.
For a confidential chat with one of our family law experts, give us a call or book in for a free initial consultation.
