What’s in a Name? How Divorce Affects Your Right to Use Your Own Name

What’s in a Name? How Divorce Affects Your Right to Use Your Own Name

by Jane Stack and Nancy D. Kellman | Jan 25, 2021 |

Whether or not a newly-divorced person can resume the use of the name they used before marriage depends on the location (jurisdiction) where people get divorced.  Since we live in an increasingly global world where people from different nationalities get married in country A, may live in country B, and get divorced in country C, this seemingly simple issue can get quickly complicated, although some basic rules apply.

The Western world is divided mainly into two kinds of countries when it comes to legal systems:  “civil law” and “common law countries.”  Civil law countries include France, Belgium, Luxembourg, the Netherlands, Italy, Romania, Spain, Germany, Austria, Switzerland, Greece and Portugal.  Common law countries include England, the United States, South Africa, Australia, India, Ireland and Canada.  

When people get married in a civil law country, such as France, then emigrate to a common law country, such as the U.S., one of the questions that may arise in the U.S. divorce is the law that applies when one of the soon-to-be-ex spouses wishes to use a name post-divorce that they had used before the divorce.  The body of law that will be invoked in such situations is known as “choice of law.”

In common law countries, such as the U.S., spouses have the option of changing their names when they get married.  Consequently, divorce has no effect on the right of a spouse to retain the name they used when they were married, which accounts for the common use by women of their formerly married surnames.  Correlatively, if a formerly married person wishes to revert to their birth name (often but not always a “maiden” name), certain steps need to be taken.

In England and Wales, the custom developed of using a hyphenated, or compound, last name to denote the fact that a married person had a particular birth name.  Recently, this trend has gained popularity in America, where hyphenated surnames have not only been adopted by married women but married men as well.  

In England, after divorce, individuals may automatically continue to use their ex-spouse’s name without the need to obtain either the other party’s consent or permission from the court, and a husband may not compel his ex-wife to give up the use of his name.  Therefore, British courts do not rule in divorce proceedings on whether the married name will be kept, since it is an established right, unless the individual wishes to give it up.

Thus, in Britain, individuals who wish to reclaim their birth name must provide a copy of their marriage certificate and divorce decree to the proper administrative agency in order to change their name from their former married name back to their birth name.

The rule in the U.S. is very similar to the English rule, i.e., individuals get to keep the name of their ex-spouse after divorce.  Spouses who wish to reclaim their birth name must petition the court having jurisdiction over their divorce to the effect that they wish to resume the use of their former, i.e., birth names, and divorce judgments typically include a provision to the effect that the parties in a divorce have the right to resume the use of their birth names.  

An experienced matrimonial lawyer is the best source of information on divorce, separation, custody, child support, alimony and property division.  Call us at 475-232-4105 for a confidential consultation.