Changing your child’s name post separation
Under the Family Law Act 1975 (Cth) there is a presumption of Shared Parental Responsibility. This means that the parents of a child will equally share in the decision making for their child. This will include joint decisions in relation to the child’s religion, what schools the child is to attend and decisions about the child’s surname.
When parties enter into marriage it is not uncommon for the wife to change her surname to match that of her new husband. This ensures that when a child of the marriage is born all parties share the same surname and are therefore easily recognised as a family unit.
But what happens when the marriage breaks down and the wife reverts back to her maiden name? Can she just change the child’s name too? The answer is simply NO!
While the mother can revert to using her maiden name she cannot simply just change the child’s surname to match hers.
A name can be changed by common usage but this is not legally enforceable. For example if the mother begins to use her maiden name to replace the child’s surname, the child will legally still be known as the name that is registered on his/her birth certificate.
The only way that a parent can make a decision to change their child’s name without the consent of the other parent is if they have sole parental responsibility for that child. Even then, the other parent may still object to that change.
If both parents consent to changing the child’s name, this can be done easily through an application to the Births, Deaths and Marriages Registry.
If the parties cannot reach agreement then prior to being able to make an application to the Court, Section 60I of the Family Law Act 1975 (Cth) states 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 an agreement at mediation, an application should be made to the Federal Circuit Court of Australia to seek an Order permitting the child’s name to be changed.
It should be noted that if the child is 12 years of age or older, they must agree to the change unless the Court approves and orders the change. There are also limits on how many times a child’s name can be changed.