It is a question that Tessa Bray, partner and family mediator at SMB has been asked many times. The parties divorce and the husband wants the wife to give his surname back, and for the wife to revert to her maiden name. He can ask the wife to do so, but can he force her to if she refuses?
In England and Wales, the answer is “no”. The wife can keep his surname if she wants to, and the husband cannot force her to go back to her maiden name if she won’t agree. Often husbands can feel quite strongly about it, and treat their surname almost as a possession that needs to be returned. The wife may want to keep the surname so she has the same name as her children, or she may be known professionally under that surname, or she may just not want the administrative hassle of changing everything back to her maiden name. Changing a name on a passport, driving licence, bank accounts and the electoral roll etc takes many hours and all the different organisations need to see original or solicitor certified documents. The husband’s best bet is to try and negotiate this “name return” with her as part of the overall financial deal and ask her to give an undertaking in the consent order to change her name back to her maiden name on decree absolute. However, this issue is often not mentioned or thought about until the moment that the decree absolute comes through and by then it is too late if the wife won’t agree, as the husband’s leverage has gone.
The situation in England and Wales differs considerably from France, where each spouse automatically loses the use of the other’s surname on divorce. However, a divorced spouse can retain that use by mutual agreement or by order of the court, if it can be proved that that retention is of “particular interest” to the applicant ex-spouse. Where the law requires a person to surrender the use of their ex-spouse’s surname, any attempt to retain their identity post-divorce by using an alternative mechanism to circumvent the law (say by deed poll) is likely to be invalid.
In many countries it is not customary for a spouse to take the other spouse’s name on marriage anyway, so the issue does not arise. A few examples of what happens with surnames on marriage in other countries are set out below:
If you require any advice on changing your name on marriage or divorce, or any other family law advice, please contact Tessa Bray or another member of the family team at Simons Muirhead Burton.
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