Naming rights
Under naming rights to both the body of provisions is understood that regulate which names a person is entitled to, and the conditions of a civil or public name change set (right to a name) as well as the right of a ( natural or legal ) Person to use their own name and to exclude others from unauthorized use of this name (right from a name). The right from a name is an absolute right and, in the case of natural persons, a personal right .
Germany
The German naming law is particularly regulated by the German Civil Code . On foreigners , the law of the country is used, the belonging to the foreigners. According to the law on changing family names and first names , changing names is only possible for good cause.
family name
A newborn child receives the married name of the parents as the last name. Since a decision by the Federal Constitutional Court in March 1991, it is also possible not to specify a married name. If no one has been determined and parents have joint custody , the parents have to determine the surname of the child in mutual consultation with the registrar, whereby they can choose the name of the father or mother.
Noble
In the German Reich in 1919, Article 109, Paragraph 3 of the Weimar Constitution abolished the privileges of the nobility . Former titles have since been part of the name and can no longer be awarded. The feminine form of the title is used for women, so the surname exists in two or three different versions as an exception.
Austria
In Austria, citizens and stateless persons living in Austria as well as refugees who have found admission in Austria have the right to change their first or last name if there is an important reason. The reasons must be presented in writing. The administrative act is associated with a small administrative fee. The selection of a first name is handled more generously than in German law. A name change without an important reason (desired name) is also possible, but associated with higher costs.
Family law
Surname of children
According to § 155 ABGB the following applies:
“The child receives the common family name of the parents. However, the double name of a parent can also be assigned to the child's family name. If the parents do not have a common surname, the surname of one of the parents can be determined for the surname of the child. […] A double name made up of the family names of both parents can also be determined. [...] In the absence of such a provision, the child receives the mother's family name, even if it is a double name. "
Marriage
“The spouses have the common family name determined by them. In the absence of such a provision, they keep their previous family names. "
The fiancé or spouse can choose one of their names for the common family name. You can also choose a double name made up of the surnames of both to be the common surname, whereby this may not consist of more than two names. The spouse whose family name is not the common family name can determine that he or she uses a double name made up of the common family name and his family name.
Contrary to German law ( § 1355 BGB ) it is clearly stated that double names are to be connected by a hyphen between their individual parts.
“These differences are of a formal nature and highly symbolic: the competent authority is not the registry office, as is the case with marriage, the registered partners do not have 'family names' but 'surnames'; After entering into a partnership, the civil status of the two persons does not change from 'single' to 'married', but to the civil status 'living in a registered partnership', an EP is not 'divorced' but 'dissolved' etc. "
divorce
For this purpose (until January 31, 2013) § 93a ABGB : A person whose marriage has been dissolved can declare to take back an earlier family name. A surname derived from a previous spouse from a divorced or dissolved marriage may only be re-adopted if there are descendants from that previous marriage.
For marriages that were concluded after March 31, 2013, Section 93a of the Austrian Civil Code (ABGB) newly stipulates : "If the marriage is dissolved, the spouses can reassume any previously lawful family name."
Noble
Since the Nobility Repeal Act of April 3, 1919, the use of words of honor (“from”, “to”, “from and to”) and nobility titles (noble, knight, baron) has been prohibited. These designations in the name have been deleted without replacement. “Robert Edler von Musil” became “ Robert Musil ”.
Switzerland
Surname of children
Art. 270 of the SwissCivil Code(ZGB) contains the following regulation: “If the parents are married to one another and they have different names, the child receives the one of their single names that they have chosen as the names of their children when they get married. Within one year of the birth of the first child, the parents can jointly request that the child bear the unmarried name of the other parent. If the parents have a common family name, the child receives this name. "
In the case of adoption, the child can be given a new first name. ( Art. 267 ZGB)
Marriage
Art. 160 of the SwissCivil Codestates: “Each spouse keeps his or her name. The bride and groom can, however, declare that they want to use the single name of the bride or groom as their common family name. If the bride and groom keep their name, they determine which of their single names their children should bear. "
This regulation, which came into force on January 1, 2013, replaced the previous regulation, according to which the married couple had to take the same family name, namely that of the husband, if they did not assert “good reasons” for choosing the woman's name in an application. The woman, but not the man, was allowed to put the previous name in front of the new family name. In a judgment of February 22, 1994, the European Court of Human Rights found this provision for the ECHR to be illegal. This triggered a protracted discussion about the reform of the Swiss naming law, at the end of which the regulation that came into force in 2013 stood. Even after the reform, around 80 percent of married couples decided to choose the man's name as their common family name.
divorce
Art. 119 of the Civil Code makes the following provision: “The spouse who changed his name at the time of marriage will keep this name after the divorce; he can, however, declare to the civil registry officer at any time that he wants to use his unmarried name again. "
Change of name on request
Art. 30 of the Civil Code regulates this: "The government of the canton of residence can authorize a person to change their name if there are" respectable "reasons."
Alliance name
In Switzerland, the use of an alliance name for married people is widespread, in which the name used before the marriage is placed with a hyphen after the official family name. The alliance name is not an official name, but may be used in everyday legal transactions and can be entered in the passport.
Poland
In Poland, the use of the family name is regulated by the Family and Welfare Code (kro, Kodeks rodzinny i opiekuńczy ) from 1964.
Marriage
According to Art. 25 § 1 kro, the engaged or married couple can dispose of the name in marriage by means of a declaration to the head of the registry office either when the certificate of marriageability is issued or immediately after entering into the marriage. Art. 25 § 2 kro mentions the following possibilities for naming:
- Joint married name, which is created by adopting the family name of one of the fiancées
- Use of previous family names by one or both spouses
- Use of a name that is formed from the two previous surnames of the engaged couple by one or both spouses
If no declaration is made about the naming in the marriage, the spouses keep their previous names in accordance with Art. 25 § 3 kro.
divorce
After the divorce, according to Art. 59 kro, each of the former spouses has the opportunity to submit a declaration to the head of the registry office within three months about their return to the family name they had before the marriage.
Surname of children
Art. 88 § 1 kro stipulates that the children should use the common married name of the parents, unless the parents do not have a common name. In this case, they may make a declaration of the names of the possible legitimate children at the latest immediately after the marriage. There are the following alternatives:
- Family name of mother or father
- Family name made up of the two family names of the parents
According to Art. 88 § 3 kro, this provision may still be changed when the birth of the first legitimate child is notified and applies to all children born from this marriage.
If no declaration is made about the names of the children, the children are given a name made up of the parents' two surnames in accordance with Art. 88 § 2 kro.
For children born out of wedlock, Art. 89 § 1 kro stipulates that the declaration of the child's surname must be submitted at the same time as the father's declaration of recognition of the child. If paternity is unknown, the mother's name is used in accordance with Art. 89 § 3 kro.
Change of name on request
The name change for other reasons is regulated in a special name change law ( Ustawa o zmianie imienia i nazwiska ) of 2008. According to Art. 4, Paragraph 1, this allows Polish citizens and stateless persons with the right of permanent residence in Poland to change their names on request only for good cause. An important reason is in particular if the change
- because of the previous name that was shameful or incompatible with human dignity , or
- in a name that differs from the real name but is actually used, or
- enables a return to the name that has been illegally changed, or
- allows the applicant to use a name that is also compatible with the legal system of a third country if the applicant is a citizen of that country (parallel to being a Polish citizen)
In addition, Article 4, Paragraph 2 regulates that a person living under asylum has the right to change their name if this is justified because of the dangers to their life, health, freedom or personal security.
The locally responsible registry office manager has to decide on the application to change the name (Art. 12, Paragraph 1).
United Kingdom and Ireland
The United Kingdom is not a legal entity, but is divided into three jurisdictions: England and Wales, Scotland and Northern Ireland (the Republic of Ireland is not part of the United Kingdom); accordingly, naming rights (if one can use this term at all) are handled differently. In addition to the Scots Law , the English Common Law has by far the most generous and liberal regulations with regard to naming and changing names, often in stark contrast to the continental European Civil Law .
England and Wales
In common law , the common law of England, the right to a name is subject to the citizen himself. H. First and last names are at the discretion of the wearer. A name change is therefore relatively easy: from a purely legal point of view, the use of a new name is sufficient; several names can even be used at the same time. The logic behind this lies in the common law way of thinking: Neither courts nor the legislature have tried to regulate naming law. The re Parrot case : Cox v Parrot [1946] Ch 183, the applicability of which is disputed today, has little practical significance, and a law from the time of the Second World War that forbade it to aliens , i.e. residents without British, Irish or Commonwealth citizenship to change the name was repealed in the 1970s.
Strictly speaking, a name change is not tied to any formality. This leads to the important question of evidence: it is not enough to informally declare to an authority or bank that one has adopted a new name; rather, it is often asked about documentary evidence . Most government agencies, banks, savings banks, employers, etc. accept a number of documents proving a common law name change . By far the most common and common is a "Deed of Change of Name", usually called a deed poll . A deed poll is a legally binding document of the issuer: the formality of this document makes it a binding promise (you can therefore call it a somewhat unorthodox unilateral contract). This deed poll can be submitted to the Passport Office , DVLA (National Driver's License Office), other authorities, banks, employers, universities, schools and colleges, etc. and the name will be changed as desired; the deed poll is evidence of a name change and, if properly carried out, will be accepted by all bodies. There are basically no restrictions as to which name can be adopted; Notorious name changes in recent years have included Her Majesty The Queen , Willy Wonka and Captain Fantastic , although the Passport Office's website states that names that are clearly misleading or offensive will not be accepted. This does not mean that the name change is not valid, it simply means that no passport will be issued in this name as part of the administrative discretion (passports are issued under the royal prerogative). In spite of the lack of restrictions, no fraudulent activity may be committed with a name change. For example, anyone who opens an account is usually asked about all the names by which they are or were known. A deed poll must have the following wording (analogously): “ I, [former name], have dropped my former name and assumed for all purposes the name [new name]. Signed as a deed in / on, and witnessed by […] ”. It is common law requirements to draft a deed poll yourself and, a requirement for the validity of the document, to sign it in the presence of a witness (who must also sign); it is not necessary to consult a solicitor (lawyer) for this. Anyone who is not directly related to the person changing the name or who lives in the same household can be a witness. There are many deed polls on the Internet that charge between £ 5 and £ 50; although this is by no means required, these services are widely used. The Legal Deed Service Ltd. announced in 2008, 90,000 people have the online service used this year. Deed polls can be published in court ( Enrollment in the High Court of Justice ), but this is by no means necessary and only rarely occurs. Some foreign embassies (e.g. New Zealand ) require their citizens living in the UK who change their name to make a copy of the enrollment so that the change can be recognized there. In addition to deed polls, there are a number of other ways to submit documentation for a name change. Statutory declarations , which can roughly be compared with the affidavits in German law, are rarely found in England today, but are accepted. Much more common are marriage certificates ( decree nisi , decree absolute ). If one of these documents is presented, an additional deed poll is no longer required: it is only about the proof of a name change, not about its implementation, because this happens according to common law by using the new name. In principle, a copy of two newspaper advertisements announcing the name change is sufficient, but most authorities will no longer consider this to be sufficient documentary evidence. In England and Wales, unlike Scotland, the birth certificate can only be changed in the event of a gender reassignment. A passport does not necessarily have to be changed after a name change (but a driver's license does). There is no central point for reporting name changes; the birth register does not have to be changed either.
Foreigners and the English naming law
Some states recognize deed polls issued in England , but this may be subject to different conditions, e.g. B. enrollment in the High Court (New Zealand), a solicitor as a witness to the document (Pakistan's High Commission ) or legalization (Estonia). Most of these states are members of the Commonwealth of Nations and thus use common law (the US embassy does not recognize deeds poll , but Statutory Declarations do ). However, most EU countries do not recognize these documents , such as the German Embassy (similar difficulties have also been reported by Spanish, French, Belgian, Swiss and Dutch citizens in England). This is because English common law follows the domicile principle , i.e. H. a natural person is subject to the law of the jurisdiction in which they reside, not of whose state they belong. German law, on the other hand, follows the principle of citizenship, and according to German law, a name change is only permitted on application under public law (see above). Due to the domicile principle, however, foreign citizens are free to change their names under English law; Deeds Poll of foreigners are, with one exception ( Certificates of Registration that apply for EU citizens can but (do not have) because of the freedom of movement in the EU are from the Border Agency always issued in the name, which stands on the pass; in In this case, employers can be presented with the certificate including the deed poll ), accepted by authorities, banks, etc., even if they cannot change their identity card or passport. However, the person changing the name is then obliged not to use the passport in the United Kingdom without showing the deed poll , which does not lead to problems in everyday life, especially because there is no identification requirement. By showing your passport and deed poll , credit cards or a British driver's license can be issued in the new name; The latter is fully valid proof of identity.
Scotland
Deeds polls are not recognized documents under Scottish law, so that the name change here is different to England and Wales, mostly by means of a Statutory Declaration (which does not mean, however, that deeds carried out in England are not valid). In contrast to England and Wales, changes to the birth certificate are also possible here.
Northern Ireland and Republic of Ireland
Northern Ireland and the Republic of Ireland have similar regulations as England and Wales. However, unlike in England or Northern Ireland (domicile principle), foreign nationals in the Republic of Ireland may require official approval to change their name.
Other common law states
While name change is the least hassle-free in the UK and Ireland, similar rules apply in other common law countries . Countries with comparable law are:
- The United States, where individual naming rights vary from state to state,
- Canada, in Québec , however, continental European law applies (civil law and not common law and regulations that come close to those in Germany apply) and
- Australia, where usually no more than two name changes should be made per year.
Japan
Marriage
The Constitutional Court supports the marriage laws from the 19th century, according to which married couples must have a common surname.
See also
Web links
Individual evidence
- ↑ Partnerschaftsgesetz.at: Differences to marriage, ( Memento of the original from November 27, 2013 in the Internet Archive ) Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. Retrieved July 2, 2015.
- ↑ Burghartz vs. Switzerland, Series A No. 280
- ^ Page no longer available , search in web archives: Dossier on the name and civil rights of the spouses of the Federal Office of Justice; Report of the Commission for Legal Issues of the National Council of August 27, 2009 ( BBl 2009 7573 ; PDF; 520 kB)
- ↑ Women do without their own names , Der Bund , May 5, 2013
- ↑ Ustawa z dnia 25 lutego 1964 r. - Kodeks rodzinny i opiekuńczy on sejm.gov.pl (accessed on August 22, 2012)
- ↑ Ustawa z dnia 17 października 2008 r. o zmianie imienia i nazwiska on sejm.gov.pl (accessed on August 22, 2012)
- ↑ Married women in Great Britain often use both names, the wife of former Prime Minister Tony Blair is known as Cherie Blair and Cherie Booth. There is no commitment to a common married name in England; accordingly, the designation of the real name is misleading with regard to common law.
- ^ Susanne Wagner: US naming rights for marriage, birth and adoption. In: German American Law Journal, 2002
- ↑ The obligation to have a common married name remains in Japan. DerStandard.at , December 16, 2015, accessed on December 16, 2015 .
