William & Mary Journal of Race, Gender, and Social Justice
Abstract
In England, surname use was at one time quite variable and individualized. This was particularly true for women, who historically held individualized surnames reflecting their specific traits, occupations, statuses, or family relations. Women sometimes retained their birth names at marriage and passed those names on to their husbands and children. But these diverse surname practices eventually disappeared from practice and from collective social memory in England. The new restrictive inherited practice then became highly entrenched in both Australia and the United States, with the latter seeing not only social but legal forces arising to enforce it. Legal battles eventually arose concerning the scope of women’s right to surname autonomy, particularly in the United States. These conflicts extended to the naming of children in the latter half of the twentieth century.
Women in both Australia and the United States now have a recognized right to retain their birth names after marriage. However, when it comes to the naming of children in the event of disagreement between the parents, analysis of statutes and court cases involving child surname disputes reveals that women’s rights are still legally secondary to those of men in the United States, often in effect and sometimes even directly by law. The same is much less true of Australia, where women regularly prevail in such cases.
While each nation ostensibly applied the same English common law in the application of surname requirements, both judicial interpretation of the legal requirements and empirical results of those interpretations are strikingly at odds with each other. This reveals the volatility and subjectivity of what is ostensibly a consistent and reasonably objective common law system.