A Name of One’s Own: The Spousal Permission Requirement and the Persistence of Patriarchy

PdfPDF by Beth D. CohenFebruary-8-2013

Category: Lead Articles, Number 1, Print Edition, Volume 46

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.  This article addresses a discrete but inequitable issue in the area of name-change law.  As the law currently operates in Massachusetts, the process by which a married person, usually a woman, can seek a legal name change requires signed permission—the written assent of a spouse.  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.  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.  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.  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.  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. . . .

Read the full Article here.


Author: Beth D. Cohen

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