Changing the surname of a child (2)

In the case of a married couple who divorce the children will normally have the family surname. They will have lived together in a family unit – perhaps for many years. Under such circumstances if husband and wife divorce the children will normally retain the family surname. If mother subsequently remarries and takes a new surname the father of the children can legitimately object if the mother seeks to change the surname of the children to that of her new husband.

Of course, the children’s father may not object but many fathers do object under these circumstances. The courts will not normally allow a change of name here. This is because of the period of time that the children are likely to have had their surname and because of the link it establishes to their paternity..

In the case of an unmarried couple it is slightly different. As we have already seen, children cannot be registered with the surname of their father if the parties are unmarried unless the father consents. But in fact the issue here is not really with what surname the child or children have been registered. It is really how long mother and father lived together and how long their life as a family lasted.

In the case of an unmarried couple who have lived together with the children for many years and where the children were registered with the surname of their father the courts would regard the matter in much the same light as with a couple who were married and probably refuse to agree to a change of surname. The living together as a family unit and the sense of identity with their father would be important.

However, the courts are in general more likely to agree to a change of surname for children in the case of unmarried parents. In one case which has been before the House of Lords – Dawson v Wearmouth – the mother had been married to Mr Wearmouth and had two children by him. When she and the child’s father divorced the mother and the children retained the surname of Wearmouth.

Mother subsequently met Mr Dawson, she and the children lived with him and she had a third child by him. When the third child was about one month old mother and Mr Dawson separated. Mother registered the third child with the surname of Wearmouth which she and the two other children had maintained. She knew that Mr Dawson would not like this and in fact Mr Dawson applied to the court in order that the third child could be known by his surname.

The House of Lords refused. The question, as always, was what was in the child’s best interests. In this case mother, Mr Dawson and the child had not really lived together as a family unit for any length of time. Mother not unnaturally argued that she and the two other children had one surname and it would do more for the unity of the family if all the children had the same surname. The court agreed with her.

It will be appreciated that an unmarried father who has never lived with the mother and who has not agreed to let the child be registered with his surname is in a very weak position indeed.

There are other, exceptional, cases where the decision is relatively easy. For example, father and mother may have been married and divorced but the father may have been sent to prison for a crime which has attracted some publicity. In one such case where the child had exactly the same name as his father the court readily agreed to the change of surname that was wanted by the mother. As always, it is what is in the best interests of the child that matters.

These are probably the most common situations and they arise all the time in family law. A separate, but related, question is the change of surname by a wife following divorce or, indeed, the question of changing names generally. To learn more about that please continue.


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