Law of Names

From Max-EuP 2012

by Walter Pintens

1. Historical development

Names are as old as mankind. The habit of characterizing persons by a permanent and hereditary family name has slowly evolved from identifying persons using an individual name to employing the baptismal name until finally the system of family names was introduced. State authorities faced difficulties in bringing to bear their influence upon individuals. Until the end of the 18th century, under the influence of Roman law, it was possible for persons to change their names. The initiatives resorted to by state authorities in the 16th and 17th centuries to prohibit a free change of name, eg in Germany and France, failed. Only after the French Revolution did state authorities increase pressure on their citizens, and names gained major importance as a means of identification. Names enable state authorities to register their citizens, and their enrolment gives state authorities the ability to control them. Almost all legal systems placed major emphasis upon the aspect of control while the relationship between persons and their names was neglected. This is the reason some legal systems qualified the name as an institution de police.

Names became progressively less important for state authorities as the use of enrolment numbers increased, such registration numbers enabling states to identify their citizens. Consequently, stronger emphasis is now placed upon the relationship between persons and their names.

People are individualized by their names and thus become distinguishable from other persons. Names personalize their bearer’s achievements. They make citizens visible members of society and enable them to contribute within their social sphere. A person’s name may represent invention, artistic and scientific achievement or political contribution. Every citizen exercises his civil and political rights and fulfils obligations under his name. This interdependence between personality and name paved the way for the right to a name being seen as a personality right in most legal systems except the common law.

2. Components of names

All European legal orders appreciate the family name as an important component of the name except the Icelandic system where no family name in the true sense of the word exists though it is generally recognized by law since 1996. Under the Icelandic system, children receive, in addition to their own first name, their fathers’ first name in its genitive form plus the suffix -son (son) if the children are boys or -dóttir (daughter), if they are girls, rather than a family name.

As a general rule, names are obtained by parentage. Most legal systems do not establish a connection between the family name and the sex of the name bearer though exceptions do exist. In Bulgaria, Poland and Russia, for example, the sex of the name bearer is discerned by the ending of the family name.

The continental legal systems mostly contain detailed rules governing the acquisition and change of family names. In contrast, the common law is characterized by more liberal structures.

The concept of first names and the possibility of changing them is a feature common to all legal systems. The common law is in this regard also characterized by a free choice of first names. Until recently, continental legal systems had to a certain extent been rather restrictive in this respect; today, however, most allow a free choice of first names provided that the chosen name does not impair the well-being of the child. As a consequence, parents are also granted a right to invent first names.

Middle names, which are very common in the United States, are not part of most European legal systems. The Nordic legal orders allow parents to give their child a middle name, comprising the parent’s name which has not become the family name of the child. In Russia, children receive a middle name consisting of the father’s first name plus the suffix -vich, if the child is a boy, and -ovna or -evna if the child is a girl (Art 58, §§ 1–2 Family Code).

A title of nobility is a component of the name in some legal orders which were formerly, or are currently, monarchies such as Belgium, Germany (Art 109(3) Weimarer Reichsverfassung) and England. In other legal systems, such as in Spain, a title of nobility is not an element of the name.

Academic titles are most commonly not constituents of names. Aliases are not elements of names and are often not governed by law.

3. Acquisition of the family name

a) Children born in wedlock

Many children bear the surnames of their fathers—not only in the infrequent cases where systems prescribe as much by law, as, for example, in Belgium (Art 335 Code civil) or Bulgaria (Art 14(1) Law on registration of civil status), but also in systems which permit a choice to be made between the father’s and the mother’s name or even grant the possibility of inventing a new surname. This is due to the fact that the tradition of a child bearing the father’s name still prevails in practice.

In systems which stipulate or offer a joint marital name, as, for example, in Germany (§ 1616 Bürgerliches Gesetzbuch (BGB)), Switzerland (Art 270 Swiss Civil Code (ZGB)), Turkey (Art 321 CC) and Hungary (§ 42 Law on marriage, family and guardianship), the child bears that name.

In systems where no common marital names exist or the spouses did not choose a common name, there is often a possibility to opt for either the mother’s or the father’s name, as is the case in Germany (§1617(1) BGB) or the Netherlands (Art 5(4) Burgerlijk Wetboek (BW)).

In Spain, there is a long-standing tradition of combining both parental names. Traditionally the father’s name comes first, although the parents can opt for the reverse order.

Several legal systems contain broader possibilities and permit either the father’s or the mother’s name, or a combination of both, to be used, as in France (Art 311-21 Code civil), Greece (Art 1506 CC), Portugal (Art 1875 Code civil) and Hungary (§ 42 Law on marriage, family and guardianship). Some legal orders even grant parents, in addition to multiple options, the possibility of selecting a new individual name, eg in Denmark (§§ 4ff Law on names), Norway (§ 3 Law on names) and Slovenia (Art 7(3) Law on names).

In England and Wales, children bear their father’s name in the majority of cases, but there is no common law obligation to that effect which bars the free choice of names.

If the parents are unable to agree on their child’s surname, the child bears, for instance, the name of the father in the Netherlands (Art 5(5) BW) and the name of the mother in Denmark (§ 1(2) Law on names) and Norway (§ 2 Law on names); in Germany, by contrast, the competent family court confers the authority to choose the name to one of the parents (§ 1616(2) BGB).

b) Children born out of wedlock

In most legal systems, the law of names applicable to children born in wedlock is also applicable to those born out of wedlock if maternal and paternal affiliation has been established at the time of issuance of the birth certificate. Where there is no joint parental responsibility, the child bears the name of the mother. Subsequent establishment of paternal affiliation does not alter the child’s name, although parents are often allowed to jointly declare that the father’s name will be used.

4. Marriage and partnership

In most systems, marriage does not influence the surname of the spouses, as, for example, in Belgium, France, Greece, Italy, the Netherlands (Art 9 BW), Norway, Portugal (Art 1667 Code civil) or Spain. Each spouse maintains his or her name but is allowed to use or add the other spouse’s name.

In several systems, a common marital name is prescribed by law as a general model, as, for example, in Germany (§ 1355(1)1 BGB), Austria (Art 93 ABGB), Switzerland (Art 160 ZGB) and Turkey (Art 187 CC). In Germany and Austria, both the name of the female and male spouse can be selected as the joint marital name. If the spouses do not choose a common marital name, each one keeps his or her own name according to German law (§ 1355(1)2 BGB). In Austria, the name of the husband becomes the joint marital name. In Switzerland and Turkey, the name of the male spouse is de iure the common marital name. In Switzerland, the name of the wife can only be chosen as a common name if a legitimate interest exists. In Turkey, the wife can only add her name to the husband’s name. This rule is, however, a violation of Art 8 ECHR—ECtHR No 29865/96 – Tekeli.

The Nordic as well as several eastern and middle-European legal systems, eg Croatia, the Czech Republic and Hungary, offer a broad range of naming options to spouses, as does the common law.

Some legal systems contain provisions dealing with registered partnerships which are comparable to those concerning marriage, as, for example, § 3 of the German Lebenspartnerschaftsgesetz.

5. Change of name

Under common law, every person enjoys complete liberty to change his or her name, except in cases of deceit. The most commonly used, but not obligatory, means of changing one’s name is the deed poll.

Continental legal orders only permit name changes if the competent authority consents. In the majority of jurisdictions sufficient justification is necessary.

6. The law of names and human rights

The International Covenant on Civil and Political Rights of 19 December 1966 prescribes that every child shall be registered immediately after birth and have a name (Art 24(2)). The UN Convention of 20 November 1989 on the Rights of the Child contains an identical rule (Art 7(1)). Both provisions not only imply that each person has a right to a name, but also entail the general right to defend oneself against any infringement of this right.

The ECHR (human rights and fundamental rights (ChFR and ECHR)) does not explicitly grant protection to names. The European Court of Human Rights (ECtHR), however, has in several judgments recognized that the name touches both private and family life and therefore falls within the scope of application of Art 8 ECHR. As a consequence, arbitrary impediments without any objective and reasonable justification violate Art 8 ECHR in conjunction with Art 14 ECHR. The court has especially focused on the equality of men and women (discrimination (general)) and classified discriminatory legal rules relating to marital names as violations of Art 8 in combination with Art 14 ECHR—ECtHR No 16213/90 – Burghartz; ECtHR No 29865/96 – Tekeli.

7. The law of names and the European Community

EC and EU private law does not contain any rule on the law of names—not even on trade names—nor any explicitly formulated fundamental right which aims at protecting names.

The ECJ (European Court of Justice) has held that the freedom of establishment is infringed when a Greek national is obliged, under the applicable legislation of a Member State, to use, in the pursuit of his professional occupation, a transliterated version of his name whereby its pronunciation is modified and the resulting distortion exposes him to the risk that potential clients may confuse him with other persons (ECJ Case C-168/91 – Konstantinidis [1993] ECR I-1191). As a result of this case, legal rules in fields such as civil status registration, areas in which the EU actually has no general competence, may be neither discriminatory nor in violation of the freedoms of the TFEU.

In further judgments concerning the international law of names (ECJ Case C-148/02 – Garcia Avello [2003] ECR I-11613; ECJ Case C-353/06 – Grunkin) the ECJ has granted possibilities broader than those offered by national private international law on the bases of Union citizenship and the interlinked freedoms (Arts 20, 21 TFEU/17, 18 EC). Although not interfering with national substantive law, these decisions will nonetheless influence this substantive law and lead to further options. In specific cases the authorities of a Member State may on public policy grounds refuse the recognition of a surname of a national obtained in another Member State (ECJ Case C-208/09 – Sayn-Wittgenstein [2010] ECR I-0000).

Literature

Sylvie Nautré, Le nom en droit comparé (1977); Alexander Bergmann, Murad Ferid and Dieter Henrich (eds), Internationales Ehe- und Kindschaftsrecht mit Staatsangehörigkeitsrecht (6th edn, since 1983); Dieter Henrich, Der Erwerb und die Änderung des Familiennamens unter besonderer Berücksichtigung von Fällen mit Auslandsberührung (1983); Anne Lefebvre-Teillard, Le nom. Droit et histoire (1990); Walter Pintens and Michael R Will, ‘Names’ in IECL IV (1992) ch 2, paras 84 ff; Walter Pintens, ‘Name und Menschenrechtskonvention’ in Festschrift Dieter Henrich (2000) 451; Paul Lagarde, ‘L’oeuvre de la Commission Internationale de l’Etat Civil en matière de nom des personnes’ in Festschrift Erik Jayme (2004) 1291; Berthold Gaaz, ‘Der Doppelname als Menschenrecht? Zum Recht des Kindesnamens in Europa’ in Festschrift Reiner Frank (2008) 381; Volker Lipp, ‘Namensrecht und Europa’ in Festschrift Rainer Frank (2008) 393; Nasreen Pearce, Change of NameLaw and Practice (2010).

Retrieved from Law of Names – Max-EuP 2012 on 26 May 2022.

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