Lynch, Allcorn and Furman. Furman, J.s.c., Temporarily Assigned.
Plaintiff appeals from the denial of her application for a change of name under N.J.S.A. 2A:52-1 from her married to her maiden name. She has been married more than five years. Her husband has consented to her name change. She completed her senior year at law school a few months after the institution of this proceeding. In her complaint she cites as reasons for a resumption of her maiden name that she wishes an identity separate from her husband and regards a change of name as having important professional as well as social implications for her. The couple is childless but of child-bearing age.
This court has great concern for the stability of the family and the marriage relationship * * *. The situation which would be created by the granting of plaintiff's application, viz., plaintiff and her husband each continuing to use the surnames with which they were born, would cause great confusion in the community in which they live and could well have a traumatic effect upon any children they
might have. This is especially true in the light of plaintiff's use of her husband's surname subsequent to her marriage. The problem would also arise of what surname to give the children of their marriage and the confusion and bureaucratic nightmares the process of selecting a surname would create.
N.J.S.A. 2A:52-1 is remedial legislation establishing a method of judicial recordation of changes of name. It has been construed consistently in the light of and not in derogation of the common law, which it does not supersede. State v. Librizzi, 14 N.J. Misc. 904, 188 A. 511 (Sup. Ct. 1936); In re Joseph M., 91 N.J. Super. 296 (Cty. Ct. 1966); In re Witsenhausen, 42 N.J.L.J. 183 (C.P. 1919).
Other states have similarly construed their change of name statutes. Marshall v. State, 301 So. 2d 477 (Fla. D. Ct. App. 1974); Petition of Hauptly, Ind., 312 N.E. 2d 857 (Sup. Ct. 1974), rev'g Ind. App., 294 N.E. 2d 833 (D. Ct. App. 1973); In re Marriage of Banks, 42 Cal. App. 3d 631, 117 Cal. Rptr. 37 (D. Ct. App. 1974); Application of Halligan, 46 A.D. 2d 170, 361 N.Y.S. 2d 458 (App. Div. 1974), rev'g 76 Misc. 2d 190, 350 N.Y.S. 2d 63 (Sup. Ct. 1973); Kay v. Kay, 65 Ohio Law Abst. 472, 112 N.E. 2d 562 (C.P. 1953); Brayton v. Beall, 73 S.C. 308, 53 S.E. 641 (Sup. Ct. 1906).
At common law any adult or emancipated person was at liberty to adopt any name as his legal name except for fraudulent or criminal purpose, without resort to any court. McGarvey v. Atlantic City & S.R. Co., 123 N.J.L. 281 (E. & A. 1939); State v. Librizzi, supra; Sobel v. Sobel, 46 N.J. Super. 284 (Ch. Div. 1957); In re Witsenhausen, supra; Hauptly, supra; Stuart v. Board of Supervisors of Elections, 266 Md. 440, 295 A.2d 223 (Ct. App. 1972); Smith v. United States Cas. Co., 197 N.Y. 420, 90 N.E. 947 (Ct. App. 1910); Halligan, supra; Application of Shipley, 26 Misc. 2d 204, 205 N.Y.S. 2d 581 (Sup. Ct. 1960); Pierce v. Brushart, 153 Ohio St. 372, 92 N.E. 2d 4 (Sup. Ct. 1950); Brayton v. Beall, supra. A third exception to this common law right has been alluded to, that the name itself
to be adopted is obscene or otherwise offensive. In re Joseph M., supra, 91 N.J. Super. at 298.
Authorities in various common law jurisdictions have reached apparently conflicting conclusions whether a woman on marriage assumes her husband's surname by custom or by law. The authorities are nevertheless reconcilable. A woman may retain her maiden name by antenuptial agreement or by holding herself out consistently by that name after marriage. She is not compelled by law to assume her husband's surname as her legal name. Stuart, supra; State v. Green, 114 Ohio App. 497, 177 N.E. 2d 616 (Ct. App. 1961); Rice v. State, 37 Tex. Cr. R. 36, 38 S.W. 801 (Ct. Crim. App. 1897); Halligan, supra; 19 Halsbury's Laws of England, Husband & Wife (3rd Ed. 1957), § 1350 at 829.
Otherwise, if the woman on marriage does not retain her maiden name, she legally adopts her husband's surname by repute, consistent with the common law right to adopt any name as her legal name without a court proceeding. Judicial opinions dealing with inadequacy of notice to a married woman in her maiden name are based generally on her assumption of her husband's surname as her legal name. Chapman v. Phoenix National Bank, 85 N.Y. 437 (Ct. App. 1881); Claxton v. Simons, 177 N.E. 2d 511 (Ohio Ct. App. 1961), rev'd on other grounds, 174 Ohio St. 333, 189 N.E. 2d 62 (Sup. Ct. ...