Change of name after separation

After the breakdown of a relationship people often wish to revert to a surname used before marriage and/or adopt a new surname on formation of a new relationship.  In this situation  questions also arise about whether children to a previous relationship can or should change their names to accord with the change of name after separation of one or both parents.

With the adults, the law and the procedures are relatively simple.   The right to revert to the surname they used before marriage occurs automatically on the granting of divorce and any subsequent marriage to another person entitles use of the surname recorded on the Marriage Certificate.  A change to any other surname can be legally effected by completing a  form which is available from the Registry of Births Deaths and Marriages (“Registry”) website Persons born in any other state of Australia however need to action the process through the Registry in their original home state. A surname can be changed to any other name provided the proposed name is not prohibited nor otherwise sought for a fraudulent/improper purpose – and – because we know some of you will ask, “prohibited” names are those considered obscene or offensive, too long, consisting or including symbols without phonetic significance, resembling an official title or rank or including a statement. For example, a name like “Save Mother Earth” or “Down With Capitalism” would be refused registration.

Changing the surname of a child has the potential to become considerably more involved.

Where both the biological parents consent to the change, a form from the above website can be used and a Certificate verifying the change of the child’s surname will issue.  There is also the option to have the Birth Certificate altered to reflect the new name.  If the child is over the age of twelve however, the child’s consent to the change of surname must also be obtained.

If parents cannot agree on the child’s surname then the parent seeking the change must apply to the local Magistrates Court for approval under Section 17(3)(c) of the Births Deaths and Marriages Registration Act 2003.   A parent seeking to stop the change must apply to the Family Court for an Order prohibiting the other parent from referring to the child by any surname other than the name registered at birth.

In adjudicating either Application the Court will consider:

  • Any embarrassment or confusion of identity the child is likely to experience from either changing or keeping a surname; and
  • The effect it may have on the child’s relationship with the parent or other whole of half sibling; and
  • The overriding principle of the child’s best interests.

Michael Zande is a Queensland Law Society accredited family law specialist with over 20 years experience in the field. He is the principal at Zande Law Solicitors, Suite 7, Norwinn Centre, 15 Discovery Drive, North Lakes.  To contact Michael for advice phone 3385 0999.

The information in this article is merely a guide and is not a full explanation of the law. This firm cannot take responsibility for any action readers take based on this information.  When making decisions that could affect your legal rights, please contact us for professional advice.