Legal Name Change or Change of Name by Marriage - the Facts and the Pitfalls

 
by Jennifer Cram - Brisbane Marriage Celebrant © (24/10/2021)
Categories: | Wedding Legals |
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Keep Calm and Change Your Name - or Not
                          posterOne of the more frequently asked questions in relation to getting married is about changing your name. What makes it tricky is that

            • There is still a widespread belief that, on marriage, women must (or at the very least should) change their name to that of their husband (not true).
            • There are two different ways to change your name, and you will be given conflicting advice about which one applies to you

So, if you've ever wondered whether you are legally required to change your name on marriage, or even why we say Mr and Mrs and never the other way round, or even why Princess Michael of Kent is called by her husband's first name and not her own (it is Marie Christine Anna Agnes Hedwig Ida von Reibnitz) here are the facts.

Names and the law in Australia



Adults in Australia can assume any surname (family name) they wish (with certain exceptions, ).

If you are a woman, it has been accepted (and expected) forever that when you get married you will take on your husband's name (change of name by marriage). It is now widely accepted that anyone getting married, regardless of gender, can either keep their birth name, take on their spouse's surname, or hyphenate your last names in either order, with or with the hyphen between the names.

The history of the custom for women to change their name



It all started in the 9th century and was bedded down (excuse the pun) by the Normans.

Up until that time, surnames hadn't really been necessary or set in stone. We still see the evidence of the practice at the time of identifying individuals by a nickname, their occupation or some geographical reference in many surnames today. Names such as Carpenter and Wright, Little and Small, and Paddock and Hill.

Norman feudal law erased a woman's identity of married. The Law of Coverture. Which refers to the fact that, on marriage, a woman was "covered" by her husband's identity. The two became one. The one being the husband. So legally she was subsumed into the husband's legal identity, they  were treated as one entity. In essence, her separate legal existence disappeared as far as property rights and certain other rights were concerned. And thus, she was required to take on her husband's surname.

None of that applies in Australia any more. So changing your name is optional, and, this bears repeating, either of you can assume your spouse's surname.

Changing your name after marriage



If you choose to change your name after marriage, you have two ways to do it.
  • You can change your name by marriage, or
  • You can apply for a legal change of name.
The process for each is different, as is what can and does happen after you make the change.

A traditional "change of name by marriage"



Changing your name by marriage is easy peasy, and free. You just do it. You don't have to ask anyone's permission. You can start to use your new name whenever you wish.. Many couples incorporate the announcement in the closing remarks at their wedding ceremony, just before they walk down the aisle.

It is not a legal requirement to change your name on any documentation. Nor is it a legal requirement to stop using your maiden (birth) name entirely. A growing number of women chose to use their married name socially but keep their maiden (birth) name for professional purposes and use (and to keep being searchable on Google and on social media). It is perfectly legal to keep your maiden name on official ID documents. The important thing is to consistent about where and when you use each name. Government and financial institutions are inclined to get a bit awkward if you present inconsistent documentation.

If you decide to change your name on your documentation, the process is straighforward:
  • You have to have been married in Australia (your overseas marriage will be recognised in Australia, but because it is not registered in Australia change of name by marriage doesn't apply)
  • You need to have a copy of your official marriage certificate (the one you apply for to Births, Deaths, and Marriages in the State or Territory in which you got married. This certificate proves that your marriage was registered
  • And then you take that certificate, together with your birth certificate to prove the link between the two names, plus whatever it is that you are asking to be reissued to the various entities where you want to change your name and ask for that to be done.
    Hint: Start with photo ID such as driver licence or passport, because that can then be used to do things like change your name online on the electoral role
    Cost: There is no cost to have your documents reissued in your new name. Not even for your new passport, though that does have some conditions - you must have at least 2 years validity left on your passport and you must apply within 12 months of getting married. 

Legal name change




A legal name change is a whole other matter.  You have to make a formal application (and pay a fee) and give a reason for the change. So, in a way, a government entity has the final decision about whether you will be allowed to change your name.

Other things about a formal legal change of name that you need to be aware of:
  • This form of name changes obliterates your birth surname and retrospectively changes your surname on your Australian birth certificate. You will be issued with an amended birth certificate.
  • If you were born overseas, you will be issued with a change of name certificate
  • There are residence conditions. If you were not born in Australia you need to be a permanent resident who has lived in your current state for the previous 12 months. If you were born in Australia you apply to BDM in the state or territory in which you were born
  • There are limits on how often you can change your name and how many times in your lifetime you can do so. In Queensland, for example, you can only change your name once in a 12 month period. In New South Wales and Victoria, for example, you can only change your name three times in your lifetime. Other states have similar rules.
  • You need to apply for a legal name change, pay a fee, and provide a long list of documentation
  • You don't have to have gotten married in order to change your name legally
  • It can take quite a long time - months - from application to approval. 

Do you always have to show your official marriage certificate?




If you are changing official documents, or with a financial institution that requires 100 points of ID, the answer is yes. In other circumstances, the answer is no you don't!  And frankly, your marriage certificate is a legal identity document with personal information on it so you shouldn't just flash it around to all and sundry.

Some organisations may accept the Presentation Certificate (the pretty one you were handed on the day) because it is proof that the marriage took place, and it doesn't include any personal information other than your full names. Sad but true, using the Presentation Certificate will be straightforward if you are a wife doing a straight swap to her husband's surname. For anything else, you may have to deal with skepticism. At which point, your updated driver license or adult proof of age card should settle the argument.

Your doctor, dentist, or other medical practice should accept your updated medicare card as evidence, a good reason to change that once you get your new photo ID (driver licence, passport or adult proof of age card).

Any place where it is just a matter of them changing your name on their membership list should accept your word for it.

Going Facebook Official doesn't require any proof, and nor does changing your name on Facebook .

What if you get divorced, separate, or just change your mind?




If you change your name by marriage all you need to do is reverse the process. Just take your marriage certificate and your birth certificate to prove the link between the two names and "reclaim" your birth name. You can do this immediately. Your birth name is yours by right throughout your life. However, some entities may ask to see a divorce certificate. Feel free to argue the toss on that one!

If you wish to continue to use your "married" name, you are free to do that. Your ex can't stop you using the name.

If you have gone through a legal change of name, you have to make a new application, abiding by all the rules for that, so the process is much more protracted.

Related Information



Thanks for reading!
Jenny xxx Let's talk soon about how you
                      can have the best ceremony ever
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