Changing the surname after divorce: How to proceed and what the choice of the surname of the child entails

Quick overview

After a divorce, you can return to your former surname within 6 months by notifying the civil registry office in accordance with Section 759 of the Civil Code. If you miss this deadline, it is no longer a simple return by notification, but a standard application for a change of surname under the Civil Registry Act. For a child, the situation is more complicated: his or her surname does not change automatically just because a parent changes his or her surname after a divorce. The parents’ agreement, the child’s interest and, in the case of a child over the age of 12, the child’s consent are essential.

Returning to the former surname after divorce

The legislation distinguishes between two different situations, which are often confused in common parlance. The first is a return to the former surname after divorce, the second is a later change of surname on request. The distinction is important not only legally but also practically.

According to Section 759 of the Civil Code, a spouse who has adopted the surname of the other spouse may, within 6 months after the dissolution of the marriage, notify the registry office that he/she is adopting his/her former surname again. The same applies if he or she has added his or her former surname to the joint surname and wishes to use only his or her former surname after the divorce. This is therefore not a classic “request for approval of a change”, but a special regime linked directly to the divorce.

In practice, we encounter this difference quite often. Clients tend to believe that they will always make a normal application for a change of surname after a divorce, and are surprised to find that the law allows them a simpler procedure for a limited period of time. At the same time, however, the six-month period is fixed and should not be underestimated.

How to go back to your original surname

If you are within 6 months of your divorce, you must notify the registry office that you are taking back your former surname. The Civil Registry Act specifically provides for this notification to be entered in the marriage register. In practice, therefore, you need to contact the registry office and provide the necessary documents, in particular your identity and the divorce papers.

It is advisable to take into account that a change in the civil registry has an immediate impact on everyday life. Once you have returned to your former surname, you need to start dealing with new personal documents and follow-up changes to other institutions.

Example from law practice
In practice, a change of surname can happen more quickly than a client expects. We dealt with a case of a client after a divorce for whom we prepared the purchase contracts and the proposal for entry into the Land Registry. The client was due to sign the documents the next day but did not tell us in advance that she was about to announce a return to her former surname. She assumed that it would be an administrative step and that everything would take longer to manifest itself. However, as she had started using her original surname immediately, the documentation had to be quickly revised to reflect the current data.

This is one of the common practical mistakes: people sort out the registry office but forget that the change will also affect contracts, the bank, the land registry, employers or travel plans.

What if you miss the six-month deadline

If you miss the six-month deadline, a change of surname may still be possible, but it will no longer be a return on the basis of a notification under Section 759 of the Civil Code. In this case, the procedure under the Civil Registry Act is the same as for a standard application for a change of surname. It must contain the information and justification prescribed by law; the application must also be accompanied by the relevant documents, such as a birth or marriage certificate and, in the case of a divorced person, a final divorce decree.

In other words, after six months, there is no longer an “automatic return” to the former surname, but a separate administrative procedure. This is also why it is usually wise to deal with the surname immediately after the divorce, if you are clear about it.

What surname can a child of unmarried parents have

The choice of surname for a child if you are not married as parents depends mainly on the agreement between you. You can therefore choose both the mother’s and the father’s surname for your child. The decision on the surname is usually determined when the paternity is declared by consent at the registry office or when the child’s birth is registered.

If the parents do not reach an agreement on the surname, the registry office will notify the court, which will decide on the child’s surname. For children born to unmarried parents whose father is not on the birth certificate, the surname is typically assigned according to the mother’s surname. If paternity is established after the birth of the child, the parents may subsequently apply to change the child’s surname to the father’s surname (children over 15 years of age must agree to the change).

What surname can a child of unmarried parents have

A separate issue is the choice of the surname of the child. For a child whose parents are not married, Article 862 of the Civil Code provides that the parents shall choose the surname of one of them for the child; if they do not agree, the court shall determine the surname. The same logic is contained in the civil registry regulations: if no agreement can be reached between the parents on the surname of the child, the civil registry office will not enter the surname in the birth register and will notify the court.

This is particularly important for parents who believe that the child will automatically bear the surname of the mother or father. This is not always the case. The decisive factor is the agreement of the parents or the subsequent decision of the court.

If only one parent is known at the time of birth, the child takes the surname of that parent. The Civil Code regulates this in § 861.

Changing a child’s surname after the parents’ divorce

A child’s surname does not automatically change after the parents’ divorce just because one parent changes his or her own surname. In the case of a child, it must always be assumed that there is an interference with his or her personal status and therefore the legal regime is stricter.

According to Article 863 of the Civil Code, a change in the child’s personal name or surname requires his or her consent under the same conditions as in other matters concerning him or her. If the child has reached the age of 12, he or she must consent directly to the change. The same requirement is reflected in the Law on Civil Registry, according to which the consent of a child over 12 years of age is attached to the application or declaration concerning a change of surname.

The Civil Registry Act further provides that an application for permission to change the surname of a minor child must be accompanied by the written consent of the other parent or a final court decision replacing that consent. This is where most disputes arise in practice. If one parent does not agree to the change, the other parent usually does not succeed simply by referring to the fact that the child lives mainly with him or her. It is necessary to demonstrate why the change is in the child’s best interests.

Example from legal practice

After her divorce, Mrs Catherine took back her maiden name and wanted her son James to have the same surname. She argued that the child had lived with her for a long time, the father had only limited contact with him and she was the only one who dealt with school, doctors and authorities. The father disagreed with the change and insisted that the child should bear his surname.

In such a situation, it is not enough to claim that ‘the same surname for mother and child would be more practical’. The specific circumstances, the child’s life, the intensity of the relationship with both parents and the actual benefit of the change must be convincingly described. In this case, after evaluating the situation, the court concluded that the proposed change was in the best interests of the child.

In practice, it is not the case that the court will automatically grant the parent who has primary custody of the child. The specific situation and the best interests of the child are always decisive.

Practical implications of changing your surname – what not to forget?

Whether it’s a return to your former surname after a divorce or a change of surname allowed in administrative proceedings, the practical part is often more challenging than the actual processing at the registry office.

In particular, you have to take into account the exchange of personal documents and the updating of information with the bank, employer, health insurance company, service providers, possibly also the land registry, insurance policies or the child’s school records. In the case of a minor child, it is advisable to notify the change without undue delay to the child’s school, doctors, special interest groups and other institutions with which the child comes into contact.

In practice, we often see people get ID and passports right but omit long-term contracts, banking products or older powers of attorney. It is these details that then cause unnecessary complications.

Summary

After a divorce, a distinction must be made between a return to the former surname and a normal change of surname. If you have adopted the surname of the other spouse, you can notify the registry office that you are adopting your former surname again within 6 months of the divorce, according to Section 759 of the Civil Code. Missing this deadline does not mean that the change is no longer possible, but a different procedure is followed under the Civil Registry Act.

For a child, the situation is more sensitive. A child’s surname is not automatically changed according to the surname of the parent. The key is the parents’ agreement, the child’s interest and, from the age of 12, the child’s own consent. If the other parent is unwilling to consent, a court order may be necessary to replace his or her consent.