A Name of One's Own: The Spousal Permission Requirement and the Persistence of Patriarchy
Western New England University School of Law
Suffolk University Law Review, Vol. 46, p. 1, 2013
Western New England University School of Law Legal Studies Research Paper No. 13-4
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.
Number of Pages in PDF File: 13
Keywords: patriarchy, name-change law, spousal consent
Date posted: April 13, 2013 ; Last revised: May 14, 2013