A name of one's own: the spousal permission requirement and the persistence of patriarchy.

AuthorCohen, Beth D.
PositionKeeping a woman's name during marriage

Throughout the years, I have witnessed many friends and acquaintances struggle with naming decisions during the occasions of marriage, birth of children, divorce, and remarriage. Naming decisions are deeply personal, and as expected, people choose different paths; they change their names to their spouses' last names, keep their birth names, hyphenate their names, and alternate the last names of their children. In particular, two friends, who upon marriage adopted their husbands' last names, decided to resume using their birth names during the course of their marriage; both felt as though they had lost a piece of themselves and sought to reclaim their identity by reclaiming their birth name. Their individual identities, however, were not reclaimable by themselves as individuals; each woman had to either get her husband's signed permission or serve her husband as a defendant in what was otherwise a simple, administrative name-change proceeding. While some may dismiss this as a lingering anachronism, the requirement that a woman specifically notify or secure her husband's permission prior to changing her name continues to inflict real present-day harms and remains an unnecessary vestige of patriarchy.


    We carry many things with us through life, not the least of which is our own name. Although this significant part of our identity is given to us, selected for us at birth, most people accept their "given name" as their own. However, cultural norms and pressures exist to encourage women to change their name, typically upon marriage. (1) This article addresses a discrete but inequitable issue in the area of name-change law. (2) As the law currently operates in Massachusetts, the process by which a married person, usually a woman, (3) can seek a legal name change requires signed permission--the written assent of a spouse. (4) In the absence of such signed permission or spousal consent, a married person seeking a name change is required to serve his or her spouse by certified mail, as an adversary, in what is otherwise typically a nonadversarial administrative legal process. (5) This requirement of spousal notification and consent, although gender neutral on its face, has a disparate impact on married women seeking to change their names, including those seeking to resume their birth names. (6) Although the legalization of same-sex marriage has somewhat altered these dynamics, many individuals in same-sex relationships also change their names upon marriage and therefore the impact of the spousal-consent requirement applies with equal force in any marital relationship. Whether due to marriage, change in marital status, or some other significant life event, there is no question that many people, particularly women, face the issue of whether to change their name. (7) The law that addresses this most personal and private--yet also very public--issue of name-change regulation includes vestiges of patriarchy that place an undue burden on women, particularly those who marry. This article will discuss why this spousal-consent requirement is a problem and suggests simple changes to cure at least this one flagrant disparity. Additionally, because this "requirement" is not referenced in the controlling statutory law, it seems to fall into the category of what Elizabeth F. Emens refers to as "desk-clerk law" in her seminal article Changing Name Changing: Framing Rules and the Future of Marital Names. (8) Therefore, it seems that this problem can be corrected by a legislative, administrative, or judicial initiative to correct the forms as well as the required process for legal name change in Massachusetts.

    Part I provides a brief overview of the historical, social, and political context of name changes for women. Part II describes the history and current state of name-change law and process in Massachusetts and compares Massachusetts with other states. Part III explores the negative and inequitable impact of the spousal-consent requirement. Specifically, the requirement for either spousal consent or the service of process alternative places an unfair and unnecessary burden on women, and, as in other name-change cases, the publication requirement should be sufficient even when the person seeking a name change is married. Part IV suggests a legislative, administrative, or judicial remedy to address the needlessly onerous and outdated spousal-consent requirement for name changes and outlines steps that courts, clerks, and legal advisors could take to remedy this seemingly overlooked obstacle.


    1. Historical Overview of Women's Name Change

      While considering the legal process of name changing, it is helpful to have some historical background to put the process into context. First, understanding the development and use of surnames is useful to appreciate the importance and implications of names, especially for women. (9) For example, although we generally take the existence and imposition of surnames for granted, the use and adoption of surnames is, in relative terms, a more recent historical phenomenon. (10) Furthermore, although the imposition of surnames and the impact on women is commonly accepted in American culture, a woman's choice regarding surnames in other cultures varies. (11) As Elizabeth Emens set forth in Changing Name Changing: Framing Rules and the Future of Marital Names: (12)

      Marital names shape our ideas about marriage, about our children, and about our selves. For about a hundred years, American states required married women to take their husbands' names in order to engage in basic civic activities such as voting. While the law no longer requires women to change their names, it still shapes people's decisions about marital names in both formal and informal ways. (13) As for the controlling authority, "[t]he current law regarding names and name changes upon marriage belongs exclusively to the states." (14) Although there have been significant strides towards equalization of marital rights, gender discrimination remains, both in law and in practice. For example, "as of 2010 the majority of states do not allow a man to change his name to that of his wife by virtue of marriage, while the woman can do so via a simple and straightforward process in every state except one [Louisiana]." (15)

      Although naming practices and policy may not appear to be as significant as many other critical equality issues including employment discrimination, intimate partner violence, or reproductive rights, they are a fundamental representation of the notion of choice--the choice to structure one's own identity, life, and family as one sees fit. (16) As a further indication of the far-reaching impact and significance of names, naming decisions, and name changing in our culture, the discussion and scholarship spans across many disciplines. For example, popular culture, newspapers, magazines, blogs, and websites have addressed topics relating to names and name changes. (17) Specialty law, anthropology, sociology, international, and feminist journals also have rich and varied articles addressing the multitude of issues raised by naming and name changes. (18) Issues addressed range from constitutional equal protection and due process issues to feminist legal theory, transgender issues, and cultural naming practices. (19) The range and scope of these articles indicate the broad sweeping but often overlooked individual and societal impacts of names and naming rights. Individual and family names and naming practices have personal, political, cultural, and legal ramifications that cannot be overstated. Therefore, every aspect of the substance and process of the law is significant and meaningful.

    2. Massachusetts Name-Change Law

      In general, under common-law principles, a person may change his or her name without resorting to a legal process, as long as it is not for fraudulent purposes. (20) Most states, including Massachusetts, have enacted statutes that provide methods to facilitate name change that are not intended to restrict the right...

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