Sherry-Ann McGregor - Contributed

In last week's article I explored the question of whether it is necessary for a woman to do a deed poll to revert to her maiden name after she is divorced. The response was overwhelming and, naturally, most persons were of the view that no need poll is necessary, especially as there was no need for a deed poll for the woman to assume her husband's name in the first place.

I received some interesting suggestions to solve the problem and I wonder whether the persons who favour the need for a deed poll may accept the copies of the decree absolute and birth certificate, as well as a statutory declaration stating that the woman wishes to be known by her maiden name for the future, in place of that deed poll.

While reviewing that issue, I came across a few English cases which addressed a related, but slightly different issue - whether one parent may change the name of a child without the consent of the other parent?

At common law, a surname is merely a name by which a person is to be known. In fact, a child's given name is usually determined by the information given at the time of his or her birth. In the case of a married woman, there is a presumption that the child will take her husband's surname. However, the name which is eventually chosen may be a combination of the mother and father's surnames or any other name. In the case of a single woman, she is able to give her child any surname which she chooses, including her own.

It would, therefore, come as no surprise that the common law also provides for a child to change his or her surname at will, but if the change is to be made by a deed poll, certain consent is required. This consent will usually come from the parent or guardian; although it would appear that one parent or a legal guardian (in case one parent has died) may complete a deed poll to alter that name with or without the consent of the other parent.

The child's best interests

The parent whose consent was not sought may challenge this change by making an application to the court. Based on the cases decided in England, the court will not automatically reverse this change, but is likely to determine whether the child's best interests will be served by the adjustment. In that regard, factors such as the desire for the child to maintain contact with both parents, the child's ability to identify with a family unit and the potential for embarrassment to that child as he or she matures will all be relevant factors for consideration.

It is not absolutely clear what the position is in Jamaica because the Registration (Births and Deaths) Act only makes provision for changes to the child's name up to 10 years of age. In England, there is now clear pronouncement, pursuant to practice directions, as to what steps must be taken in order to change a child's name. It starts by stating that the consent of the persons who have parental responsibility for the child must be obtained unless those persons are dead, overseas or they cannot be found after diligent searches have been done.

Once again, this situation underscores an opportunity for us to clarify and make definitive pronouncements regarding situations which could detain parties in court for unnecessarily lengthy periods of time.

Sherry-Ann McGregor is a partner and mediator in the law firm of Nunes, Scholefield, DeLeon & Co. Send feedback/comments to lawsofeve@yahoo.com or Lifestyle@gleanerjm.com.