A name at common law is a means of identifying a person and distinguishing him from others. A person’s name is not subject to registration as such. It is a matter of fact and practice.
A name usually comprises a forename/Christian name and a surname. There may commonly be a further second hyphenated name and one or more further middle names.
Traditionally, a Christian name may be conferred at the time of baptism. Traditionally, baptisms were subject to registration in the relevant ecclesiastical register.
In the broader sense, a name can be that by which a person is known and has come to be known.
Names are not inherited as such. The use of the father’s name is a matter of tradition and convention, as is the adaptation of a husband’s name by a wife.
The registration of birth does not comprise the crystallisation of a name. However, registration of birth will include a forename and surname in accordance with standard forms of registration.
Change of Name
A person may change his name in most cases by adopting a new name. A forename or surname may be changed or replaced. It will commonly occur in the case of a spouse who may adopt her husband’s name on marriage. Evidence of a change of name may be given by evidence of reputation.
The change of forename may be made, notwithstanding the traditional principle that a Christian name cannot be changed.
A name is ultimately adopted and changed by use, reputation and practice. A deed poll may be executed and filed in the Central Office of the High Court as evidence of the name change. However, the deed poll has no statutory effect as such.
Public authorities such as the Land Registry, taxation and social welfare authorities may require proof of a change of name. An affidavit and declaration proving the adaptation and use of a new name may suffice.
A person who has changed his name must produce evidence of change of name by deed poll or statutory declaration. In the case of married persons, a marriage cert recording the old or new name may suffice.
Names may be changed by Act of Parliament. In Ireland, this would now require a private Act of the Oireachtas.
A deed poll, which is a deed executed by one person, is the conventional and traditional means of evidencing a change of name, whether forename, Christian name or surname.
The rules of Court provide for the enrolment of the change of name in the Central Office of the High Court. The enrolment does not have any further substantive effect but does make evidence and give assurance that it has been checked and conforms with the requisite requirements.
Evidence of change of name by deed poll is not required even for important property ownership changes such as by Land Registry. Evidence by declaration will generally suffice. Deed polls are generally voluntary.
There’s no time limit in which a deed may be enrolled. In principle, a court may order the cancellation of an enrolled deed. The deed poll is evidential and has no other effect.
A deed must be in writing, typed or printed. At common law, execution of a deed did not require a witness. However, modern land law provides that execution of a deed requires a witness.
The applicant for registration must be a citizen or certain other categories of persons. The Immigration Act makes special provision for non-nationals. They are restricted from changing names while in the State. See the sections on immigration.
In principle, a person may adopt any name he pleases. However, he may not adopt a name for the purpose of deception and fraud.
If the name is used deliberately to pass oneself off as another, there may be a fraud. If a name is used or adopted with a view to or for the purpose of taking advantage of another’s goodwill, civil liability may arise by way of passing off.
There are many offences which are constituted by giving of a false name to An Garda Síochána under a wide range of legislation. Under much such legislation, a member of An Garda Síochána may arrest without warrant a person who is suspected of giving a false name.
Variation in Names
The spelling of a name may be changed over time by adaptation. A name may change by mistaken use by a third party. A name may become hyphenated, shortened or adopted.
Persons are generally known in legal documents by their actual name, even if this is not the name on birth or their former name. In the context of the transfer of property, evidence would be required of the adaptation of the change of name and the identity of the person concerned.
Traditionally a Christian name was conferred on baptism and entered on the register of baptisms in the Christian churches. Registration of baptisms and baptismal certificates predate the registration of births.
It was held at common law that a person is known by his first baptismal name if there is more than one. In strict terms, a baptismal name could not be changed by deed poll. However, it may in practice, be changed.
The College of Arms will not enrol a deed poll which claims to change a legal name such as a company name. A Christian name (as opposed to a forename) may be changed by an Act of Parliament or by a Bishop at confirmation or a name adoption. This narrow traditional view has been criticised.
A Christian name may be changed at confirmation at the Bishop’s discretion. In practice, there is no distinction made for civil purposes between a Christian name and a forename.
Under traditional ecclesiastical law, banns were required to be published in advance of marriage which announced the names of the parties to the proposed marriage. The purpose of banns is to enable anyone to raise any canonical or civil legal impediments to the marriage so as to prevent invalid marriages.
Traditionally, a woman took her husband’s surname in marriage and retained it, despite divorce or annulment. A woman, on marriage, even at common law, may retain her maiden name if she wishes.
The adaptation of the husband’s name is by convention only. The married name may be kept after the divorce.
Traditionally, a change of surname by a married man would be presumed by convention to change the name of his wife, provided she did not object. This, however, is all subject to the principle that any person may adopt any name desired.
The register of title shows the name of the registered owner on the relevant title or folio. Where a person has changed his name, and the name by which he or she is identified in the transfer instrument is not the registered name, it is necessary to prove by a declaration or other evidence the change of name. A marriage certificate may be accepted in the case of a change of name on marriage.
A beneficiary will retain entitlement under a will notwithstanding the change of name if he is identified under his older name. However, evidence may be required of the change of name.
Electoral legislation requires disclosure and publication of the candidate’s names. Misleading names are not permitted. Offences of personation under the electoral legislation may arise by giving a false or misleading name.
The practice of the Passport Office is to issue passports in accordance with the Birth Cert name. This is used on the first passport application and thereafter in accordance with previous passport applications.
A person may sue and be sued in the name which he has adopted or in his original name. There is a procedure for application to the courts in proceedings for a change of name.
A change of name arising on marriage may be adopted administratively in some courts where a person has mistakenly sued in the wrong name. It may be possible to amend the title where it can be shown that the persons concerned are one and the same person intended to be sued.
There are equivalent procedures in the various civil courts, tribunals and in criminal practice. The indictment should name the correct person with reasonable precision.
Property in Name
There is no property right in a surname as such. However, a person may gain a commercial reputation and goodwill in relation to the use of a name for a business such that use by another may constitute passing off.
Courts are more reluctant to and will not generally restrain a person from using his own name. However, a person may be restrained from using a changed name so as to take advantage of the goodwill of another.
The use of a lawful name, trading name or trademark by itself is permissible, provided it is not done in such a way as to cause confusion. No one has the right to pass off his goods with those of another. Accordingly, a person may even, by using his own name and using it innocently, make a representation that the goods are his when they are in fact those of somebody else.
Passing off requires the possibility of actual confusion. It is relevant whether or not there is an intention to mislead or confuse members of the public. Accordingly, the use of a new name is more likely to lead to an injunction than the use of an established name.
It is said that a person may use his own name but may not combine it with another in a way such as to cause confusion. The use of a name in good faith and honesty is less likely to be restrained.
However, even the use of a person’s true name, done in a manner reasonably calculated to cause confusion, may be subject to restraint as passing off. A person is not entitled to carry on business in a way that represents that it is the business of another.
An injunction will not restrain the use of a person’s established name any wider than necessary or with bona fide use of the name in the trade, provided it does not cause confusion.
In the context of partnership, an injunction may restrain the unauthorised use of a name which might expose another to a risk of liability, pledging of his credit or suggesting that he is a partner.
This may happen where a partnership with a founding partner or partner whose name the business bears retires and the continuing partners use his name without an agreement in such a way as to give third parties the impression that he remains legally responsible for the debts and obligations concerned.
Under a similar principle, persons may be restrained from using a name or acting in such a way that it implies that there is a trade relationship with the claimant. Acting and trading in such a way as to represent impliedly that a person is an authorised dealer, connected, sponsored or supported when this is not the case may be restrained even if it is done innocently.
It does not matter whether the business competes with that of the claimant. But in such cases, there is a heavier onus of proving that the use of the name imposes the credit or reputation of the claimant to possible risk or damage.
Directors and secretaries of private companies must file particulars with their present and former names with the company’s office. This is particularly relevant in relation to annual returns and appointments in directorships.
This does not include a married woman’s pre-marriage name or other names that fell out of use while a person was under 18. Changes of name themselves may require to be filed.
The Registration of Business Names Act requires registration of a business name if, in the case of an individual, it does not consist of his true surname without any addition other than one permitted by the Act.
Additions of forenames, initials and indications that the business is being carried out in a succession are permitted. In the case of a partnership, registration is not required if it consists of the surname of all persons who are partners only, with certain minimal additions.
In the case of children, a change of name will generally be presumed in the case of a change of family name.
Conventionally, children are known by their mother’s surname if their parents are not married and are known by their father’s name if their parents are married.
Family courts may, in theory, make orders in relation to the use of names in highly exceptional circumstances. Any such decisions are made in accordance with the child’s best interests. It is unlikely that a court order could affect the practical acquisition of a changed name.
Generally, parents may choose their children’s names. Children generally acquire the chosen Christian or forename and parent’s surname. Where the parents are married, generally but not necessarily, a child is registered with the father’s name.
Similarly, where the parents are not married, the child is generally but not necessarily, registered with the mother’s name. The child may be registered with or use the father’s name, notwithstanding that the parents are not married.
A child’s name may be changed by reputation and use without his knowledge or consent. However, a child significantly below the age of majority is unlikely to be in a position to choose his own name by repute or acquiescence. In an Irish case in the 1930s, it was held that it was an impossibility for an infant to formally assume a name for the purpose of a name and arms clause in a settlement, although this may not be the modern position.
Where parents disagree on the change of the child’s name, it is, in theory, a matter for the Family Law courts, to be decided in accordance with the best interests and welfare of the child concerned.
The adoption legislation protects the anonymity of adopting patents and the adoptee. There is provision for a linking register which is potentially capable of being searched with the sanction of a court order. It allows a link between the original birth certificate and the new certificate issued on adoption. There is a separate register of adopted persons. See the sections on adoption.
On succession to an English peerage or dignity, a change of name may be effected. The title or dignity may be part of the name. The person should be described by his full title, such as in civil suits.
A person may become a peer by inheritance. The UK Peerage Act 1963 allows a disclaimer of a peerage. There may be a change of surname on succession to a baronetcy.
Evidence of a change of name may be furnished by way of notarial acts with a declaration. The declaration may be made before a notary who authenticates the declaration and enters it on a register, which should be furnished as a further level of proof of a change of name.
Equally, a change of name may be effected by way of a statutory declaration. Change of name may be evidenced by a deed poll recorded at the College of Arms in the United Kingdom. The person need not be a person entitled to arms. They need not be enrolled in the High Court.
A Royal Licence may effect a change of name. An application can be made in England through the College of Arms for the grant of a licence under the royal sign manual, which is submitted to the Crown through the Department of Justice. The Department of Justice, formerly the Home Secretary, advises the sovereign in relation to the issue of the licence.
Change of names may be effected by an Act of Parliament. The United Kingdom has occasionally changed names through private Acts of Parliament.