Change of surname in law

Your surname is part of your name that, traditionally, you would have either inherited from your parents, or assumed (whether by accident or choice) as a kind of nickname.

And so it’s the part of your name that you are not “given” in baptism (or otherwise) — although practically speaking, considering that parents can choose any surname for their child — the surname is nowadays “given” to the child as much as the first name.  There is no requirement for parents to give their own surname to their children, they can choose something completely different if they wish.

A lot of surnames originally came about from —

• an occupation or rank, e.g. Smith, Taylor, Clarke, Cooper, Thatcher, Foreman, Bailey
• a place, e.g. Hill, Wood, Ford, Lee, Hall
• a town, county, or country, e.g. Murray, Poole, Hamilton, Kent
• a personal description or characteristic, e.g. Young, Armstrong, Little, King, Brown
• a patronymic, e.g. Williams, Williamson, Wilson, McWilliam, Fitzwilliam, ap William;
  the Gaelic prefix “Ó” or “O’” — as in O’Sullivan — means “descendant of” or “grandson of”

Originally, surnames were less formal and important than first names, but at a certain point (in roughly the 18^th–19^th centuries) the relative importance was switched, and surnames became more formal and important.

Modern statutes, where necessary, presume that a person has a single surname (unlike in the past when it was thought that a surname was less formal and less fixed, such that a person could have several different surnames).  The first statute which required a single surname (presuming there to be only one) was probably the Marriage Act 1753, which directs “a notice in writing of the true Christian and surnames of the parties, to be delivered to the minister,” for the publication of banns.

Changing a surname

As with your first name, there is nothing in the law stopping you from changing your surname at any time, so long as you don’t have any fraudulent (or other criminal) intent.

You can assume any surname you please in addition to, or substitution for, your existing surname.  You can change your name at any time, and as many times as you wish.

The basis in law for changing surname

There has never been any doubt that surnames could be changed at pleasure, seeing as —

• they were assumed or chosen by people in the first place (from the 10^th to the end of the 14^th century)
• there was never any law which made it compulsory to have a surname
• in practice, surnames were commonly and frequently changed by their bearers

English law has historically always regarded the surname as something much less important than the first name.  Sir Edward Coke wrote in 1628 (in the first part of his Institutes of the Lawes of England (also known as “Coke on Littleton”), chapter 3.a.) —

And regularly it is requisite, that the purchaser be named by the name of baptism and his surname, and that speciall heed bee taken to the name of baptism; for that a man cannot have two names of baptism as he may have divers surnames.

Of course, this position has now changed.  The law now regards surnames with more importance than the first name.  (See for example section 13(1) of the Children Act 1989 , which specifically forbids changes to a child’s surname if the child is subject to a Residence Order or a Child Arrangements Order which includes arrangements relating to who the child is to live with (or when the child is to live with any person), but not the first name.)

But there’s still no law restricting a person’s liberty (in the case of an adult, at least) to change their surname at any time they choose, and it’s of course still a common practice for people to do so.

Bracton (c. 1235)

The doctrine that your legal name is the name you are called and known by has a basis in ancient times.  Henry de Bracton wrote in his De Legibus et Consuetudinibus Angliæ (c. 1235), on folio 188b —

Barlow v Bateman (1730–1735)

There is no need to get any kind of permission or authority (such as an Act of Parliament or Royal Licence) to change your surname — as was held by Sir Joseph Jekyll in Barlow v Bateman (1730) —

I am satisfied the usage of passing acts of Parliament for the taking upon one a surname is but modern; and that any one may take upon him what surname, and as many surnames as he pleases, without an act of Parliament.

This particular case was successfully appealed in the House of Lords, where Sir Joseph Jekyll’s decree was reversed, but in their judgment the Lords simply ordered —

… that the Appellant is well entitled to the Legacy of One Thousand Pounds, conditionally bequeathed to him by the said Will: And it is therefore ORDERED and Adjudged, That the said Decree of the 13th of July 1730 be, and the same is hereby, reversed.

Thus the Lords did not overrule Sir Joseph Jekyll’s dictum about changing surname, but merely held that a voluntary change of surname was not good enough, in this case, to entitle the testator’s daughter (and her husband Mr Bateman) to the inheritance.  By “a man who bore the name and arms of Barlow” — as written in the will — the testator intended someone who was born a Barlow, and not someone who had only changed their name to Barlow.

The same point was made in the case of Pyot v Pyot (1749), where Lord Hardwicke held that —

This [case, i.e. Pyot v Pyot (1949)] is like that case in the House of Lords, which was a devise on condition of marrying a person of his name (Barlow v Bateman, 3 P.W. 65. and 4 Bro. P.C. 194. octavo edit.).  The lady married a person who changed his name to that in the will: the House of Lords held this voluntary change was not within the benefit of the bequest, nor a performance of the condition of the will.

The King v the Inhabitants of Billingshurst (1814) and similar cases

In the case of the King v the Inhabitants of Billingshurst (1814), the court considered whether a person’s marriage was valid, whose original surname was Langley, but had been married by banns by the name of George Smith.

The Marriage Act 1753 directs “a notice in writing of the true Christian and surnames of the parties, to be delivered to the minister,” and the case turned on how the words “true Christian and surnames” should mean in the context of the Act.  In resolving this question, Chief Justice Ellenborough pointed out that the said George Smith had been known by that name alone in the parish where he lived, and thus held —

The object of the statute in the publication of banns was to secure notoriety, to apprize all persons of the intention of the parties to contract marriage; and how can that object be better attained, than by a publication in the name by which the party is known?  … Therefore the publication in the real name, instead of being notice to all persons, would have operated as a deception; and it is strictly correct to say, that the original name in this case would not have been the true name within the meaning of the statute.  On these grounds I think that the Act only meant to require that the parties should be published by their known and acknowledged names.

In other words, the court held that the true surname in the context of the Marriage Act was simply the surname by which a person is generally known within the parish where they live.

The same thing was held by Sullivan v Sullivan (otherwise Oldacre) (1818) 2 Hagg. Con. 238, and much more recently, in Dancer v Dancer [1949] P 147.

Surnames before the 18^th century

Before the 18^th century, it wasn’t so much an issue of whether surnames could be changed (although they could of course), but surnames were thought to be less formal and fixed than first names anyway — and thus a person could validly have two different surnames at different times.

Surnames were introduced to England in about the 10^th or 11^th century, but only started to gain ground at about the time of the Norman conquest.  The practice was at first limited to the higher orders of society, and wasn’t commonly adopted until the end of the 14^th century.

However, surnames at that time were changed commonly, at the pleasure of the bearer, and didn’t become more-or-less settled (as we use and think of them nowadays) until the Reformation (in the 16^th century).  Even then, surnames didn’t necessarily have a fixed spelling, and (as with the language in general) the exact spelling wasn’t considered as something important, as it is nowadays.  It was possible, and not considered odd, for different members of the same family to spell their surname a different way, for example.

And so, in the case of Disply v Sprat (1587), for example, when one of the jurors was named as Thomas Barker at the venire facias but as Thomas Carter at the distringas jurat; although Sir Edward Coke alleged the verdict to be void because of this discrepancy, the court held that it wasn’t a problem because —

There is a great difference between a mistake in the name of baptism, and in the sirname; for a man can have but one name of baptism, but may have two sirnames.

John Popham — in Button v Wrightman (1594) — compared surnames to place names as when included in the names of corporations , such as “Oxford” when referring to the “University of Oxford”, and he held it didn’t matter if it was referred to as “Oxford” or “Oxon” so long as it was clear.  He held that —

Anciently men took most commonly their sur-names from their places of habitation, especially men of estate, and artizans often took their names from their arts, but yet the law is not so precise in the case of sur-names, and therefore a grant made by, or to John, son and heir of I.C. or filio juniori I.S. is good: but for the Christian name, this always ought to be perfect.

A surname is not a person’s right or property

There is nothing in the law stopping you from assuming someone else’s surname — a surname isn’t the property of a person.

This was held by the House of Lords in the case of Cowley (Earl) v Cowley (Countess) [1901] A.C. 450, in which the Cowleys had divorced but the ex-Countess Cowley carried on calling herself “Violet, Countess Cowley” — even after subsequently re-marrying, to a “commoner” (Mr Robert Myddleton Biddulph).  Thereupon her ex-husband (Earl Cowley), brought an action in the High Court to restrain her from using the style or title of “Countess Cowley”.  The case was initially decided in the Earl’s favour (by Mr Justice Barnes) but Countess Cowley appealed to the Court of Appeal, who reversed that decision; but then Earl Cowley appealed again, to the House of Lords, where the appeal was dismissed.

In his judgment, Lord Lindley held —

We are not now sitting as a Committee for Privileges to determine a claim to the dignity created and granted by the letters patent, 1857.  The lady calls herself, and is called in society, “Violet, Countess Cowley.”  She makes no claim to the peerage or to the dignity which is vested in her late husband, and, if she did, the High Court would not be the proper tribunal to entertain or decide such a claim.

He then concluded, that the dispute between the parties was reduced to a dispute about the use of a name (i.e. the surname of “Cowley”), as distinguished from a dignity, but he held that —

Speaking generally the law of this country allows any person to assume and use any name, provided its use is not calculated to deceive and to inflict pecuniary loss.

The same thing was made clear by Lord Chelmsford in Du Boulay v Du Boulay, where — although in a court in St Lucia — he made clear that under English law —

In this country [i.e. England] we do not recognize the absolute right of a person to a particular name to the extent of entitling him to prevent the assumption of that name by a Stranger.

— and —

The mere assumption of a name, which is the patronymic of a family, by a Stranger who had never before been called by that name, whatever cause of annoyance it may be to the family, is a grievance for which our Law affords no redress.

Change of name by marriage / divorce

When a woman gets married (although in fact the same applies to a man and to a same-sex spouse), and takes her husband’s surname, she simply assumes her husband’s surname.  The change of name is — legally speaking — no different to someone who has changed their name by deed poll, or by simplying assuming a new name by usage.

Getting married doesn’t entitle you to change your name, and nor does it oblige you to change your name — you are always free to choose your own name.  Neither is there anything wrong with changing your name to that of your partner’s — giving the impression of a man and wife — so long as there is no fraudulent intention, and so long as the couple do not fraudulently claim that they are married when they aren’t.

When you get divorced, you are free to either keep your married name, or revert back to your maiden name.  (See: Fendall v Goldsmid (1877), 2 P.D. 263.)  On getting married a second time, there is nothing to stop you from keeping your married name from your previous marriage.  (See: Cowley (Earl) v Cowley (Countess) [1901] A.C. 450.)

Proving a change of name

Although it’s not a legal requirement to have a document proving your change of name, it’s often a practical requirement to have proof —

• of your intention to change your name publicly, in good faith, and without any fraudulent purpose
• that you have taken on the new name for all purposes
• of what the old and new names were and how they were spelt
• of when the name was changed

The most common ways of proving a change of name at the present time are —

• with a marriage certificate
• with divorce documents (usually the marriage certificate also has to be shown)
• by deed poll (or statutory declaration)

Private Act of Parliament or Royal Licence

From the 16^th century onwards, a practice came about (mainly amongst the very rich) to have either a private Act of Parliament, or a Royal Licence, as proof of a change of name (except when changing name by marriage or divorce).  Although some people argued that this practice had established (in common law) a legal requirement to have to have your name changed in this way, eventually the practice died out — and it is now more than 100 years since an act of Parliament of this sort has been passed, and Royal Licences are extremely rare.  (Both methods are unpopular mainly because they are complex, inconvenient, slow, and expensive).

Deed poll

A deed poll is a solemn declaration of your intent to assume a new change of name, and thus it’s evidence that you’ve changed your name in good faith.  Using the deed poll to update your records and documents to be in your new name is proof (in itself) that you’re using the name publicly.

Enrolling your deed poll is of course further evidence that you’ve changed your name in good faith, but it’s also strong evidence that you’ve done so publicly.  An important part of the enrolment is that the details of the change of name will be advertised (publicly) in the London Gazette.

In former times, it was even common to advertise your change of name in The Times or another newspaper — with or without having executed a deed poll.

But — despite this — it’s not a legal requirement to enrol a deed poll or advertise your change of name, and (by convention) a deed poll is acceptable on its own for all U.K. organisations, including HM Passport Office and DVLA.  The very fact that you show your deed poll to an organisation is, of course, proof that you are publicly assuming the new name.