Article written by Vanessa Hernandez, Special Counsel for BTLawyers. Vanessa heads up the Family Law Department for BTLawyers and has been practicing in Family Law for 10 years. Vanessa works with private clients to assist them with all aspects involved in the breakdown of a relationship including property and parenting matters, divorce and domestic violence issues. Read more about Vanessa here.
When parents separate, it’s not uncommon to feel lost or that a part of your and your child’s life has been fractured. For the single mum who is often the primary parent, there is the emotional impact of your child still carrying on your ex-partner’s name.
So, for those querying whether you can change your child’s name and how easy it is, here’s what you need to consider.
Changing your child’s surname after divorce
Does the other parent need to agree?
Yes. As part of our law, we have a presumption of what is referred to as Shared Parental Responsibility.
What does this mean?
Shared Parental Responsibility refers to decision making power. As parents of your child, you are each legally responsible for your child until an Order of the Court or Parenting Plan says otherwise. As such, you must consult each other about major long-term decisions for your child. These include decisions such as what religion your child will practice (if any), decisions about what school your child will attend, and of course, changing the name of a child. The law requires you to consult the other parent about such decisions and importantly, to make a genuine effort to reach agreement with them.
Does the other parent have to be on the birth certificate?
Not necessarily. Even if the other parent’s name is not on the birth certificate, there are cases where that parent may still have parental responsibility and may still apply to prevent a change in name of a child.
Assuming their name is on the birth certificate (and that the other parent is still alive), the other parent will need to agree to the change. If the other parent agrees, you can both complete, sign and return the relevant application form which you can find on the website of the Registry of Births, Deaths and Marriages in the State in which your child was born.
So, what if I want to make the decision on my own?
Fortunately, there are circumstances that rebut the presumption of shared parental responsibility. You can agree with your ex to Orders that provide you with sole parental responsibility, or in the absence of that, you will need to make an application to the Court. The Court can give you sole parental responsibility for this discreet issue, or for all major decisions concerning your child.
What are the exemptions?
These include (but are not limited to) the following:-
- Cases of abuse or family violence;
- Evidence of the other party being unreliable; undermining; or a bully;
- Parental conflict;
- Alcohol or drug use;
- Ineffective communication; and/or
- Cases where an Order would inevitably lead to further conflict or litigation.
Is it easy to do?
Unfortunately no. It is not easy to obtain sole parental responsibility, but if it sounds like your situation may fit the above examples, you should seek legal advice regarding your prospects of success.
I have an existing Order, does that matter?
Yes. Your existing Order may note already whether you have shared parental responsibility or sole parental responsibility. If it is the former, you may have already agreed that all major long-term decisions need to be made jointly. If it is the later, you may not need the other party’s consent. You should check with a lawyer first!
What happens if I want to keep shared parental responsibility, but just want an Order about my child’s name?
In the absence of an agreement, you will still need to apply to the Court for an Order permitting you to change the child’s surname.
What will the Court consider?
The Court is only concerned about what is in the best interest of the child. The interest of the parent/s has little weight. Ultimately, it is at the Court’s discretion whether they approve your request. The Court will consider for each child (amongst numerous other things):-
- The welfare of the child;
- The level of involvement of both parent’s in the child’s life;
- What effects the change of name may have on the child;
- What name the child has been known by previously and the degree to which that child identified with that name;
- What will avoid confusion for the child and have less impact to the child and the child’s identity;
- The impact, if any, the current name or change in name has on the relationship between the child and each parent; and
- Whether a hyphenated name is an option or preferable in the circumstances.
What are your tips?
Here are our tips for dealing with this issue.
- Try and get the other parent’s consent. In doing so, explain why you think it would be in the best interests of the child for their name to be changed.
- If you cannot obtain the other parent’s consent, consider mediation. Find out more information about mediation from our podcast with Beanstalk Mums here.
- If you still do not agree, decide whether you will apply for sole parental responsibility and if you satisfy the requirements for the exemptions.
- Alternatively, consider an Application to the Court for only the discreet issue of the name change.
- Before applying, consider whether you are applying because the issue affects you, or because it affects your child. Consider whether the change would be in the best interests of your child.
- In your Affidavit to the Court, address the relevant factors we have listed in this article (noting they are not exhaustive).
- Get legal advice!
We are happy to provide you with further advice on this or any other Family Law Issue. Mention that you are Beanstalk Mum when you call and we will be sure to provide you with a one hour free consultation. Contact us here.