The last name is used to identify a person within the company. He attaches her to a family in which she will be distinguished by her first name.
The last name is an attribute of the personality. It therefore benefits from legal protection in the event of usurpation or unfair use.
The name is mandatory, immutable (in principle you cannot change it), unavailable (you cannot sell or transfer it) and imprescriptible, this means that you cannot lose it even if you stop using it. .
Namely: Case law authorizes the resumption of a name abandoned by ancestors (especially under the French Revolution, where it was better to avoid having a name with an aristocratic sound or particles). In this hypothesis, the name no longer appeared in the registers, but it continued to be used as a custom.
If this use was "loyal and continuous" (Cass. Civ, 1st of March 15, 1988, n ° 85-17.162 known as the "Saint Catherine" judgment), that is to say, for more than a hundred years, the descendants will be able to re-register the name in the civil status registers.
The name must be distinguished from:
- Pseudonym: stage name, author's name… invented to carry on its activity. the use of a pseudonym is protected against any usurpation, but it does not appear on official documents and cannot be added to civil status registers.
- Nickname: it is a fanciful name attributed by relatives whose use does not enjoy any recognition and therefore no legal protection.
- Title of nobility: These titles are distinct from the name. Definitively abolished in 1848, they are however protected against any usurpation. Thus, a woman married to a duke may after the divorce be granted the use of the name of the said duke, but not her title, she can no longer claim the title of duchess (CA Bourges 1ère ch. 24 February 1998). This principle resulting from a maxim enacted in 1678 “ the rod ennobles, the belly frees »Has been verbatim taken up and applied more than 300 years later by our judges!
Formerly transmitted by the father, the laws n ° 2002-304 of March 4, 2002 and n ° 2003-516 of June 18, 2003 reformed the rules of devolution of the family name by putting an end to the name "surname" and by granting both parents choose the name that will be passed on to their children.
Namely: Law n ° 85-1372 of 23 November 1985 on the name of use, already brought a modification to this principle by allowing any person "to add to his name by way of use, the name of that of his parents who did not send him his. ”But this name will not be included in the civil status registers.
Name change by descent
On joint recognition
Article 311-21 of the Civil Code will apply to legitimate children or children recognized by both parents. It does not matter whether the recognition takes place from the day of the child's birth or later, but they will have to do it together so that filiation is established towards both parents.
The parents will choose the name that the child will bear by joint declaration.
They will be able to give their child the name of the father, the mother, the two names side by side, within the limit of one name for each of them in a freely chosen order.
Ex: If the mother's name is Morin-Vallière and the father Durand-Lapalisse: The child cannot be called: Morin-Vallière - Durand-Lapalisse! it will be the choice of Morin-durand or Morin-Lapalisse or Vallière-durand….
If the parents disagree, or they do not jointly acknowledge, the child will take the father's name.
If the parents already have a first child, the following joint children will take the same name in the interest of the siblings.
On successive recognitions
This case, provided for in article 334-1 et seq. Of the Civil Code, concerns the filiations of children born out of wedlock (cohabitation, PACS, etc.).
Note: It is possible to recognize a child before birth.
The father and mother together or separately can recognize the unborn child in any town hall. The registrar will give them an act of recognition that must be presented when declaring the birth of the child.
The principle is that the child takes the name of the parent who recognized him first. But parents can change it, whether they agree or not.
If they agree
The name change may take place during the child's minority, upon joint declaration before the registrar. Parents can substitute the name of the parent who declared it second or add their two names in the order chosen (within the limit of one name per parent).
If the child is over 13 years old, the parents will need to obtain their consent to change their name.
If they disagree
In the absence of a joint declaration, the change of name may be requested from the JAF during the child's minority and this, up to the second year after reaching the age of majority (or within two years of a change made to his condition: adoption…).
Once this period has passed, the request must be sent to the Keeper of the Seals following the name change procedure.
In the event of a parentage not established
In the event of abandonment or birth under X…, the mother can indicate the first name she wishes to give to the child.
If it does not, it is up to the registrar to choose 3 first names (in principle chosen from the calendar: name of Saints or historical personalities), the third of which will serve as the family name.
Filiation by adoption
In the event of full adoption, the bond with the biological family is severed. The adoptee will lose his original name and take that of the adopter.
However, the transmission of the name will be different depending on whether the adoption is made by a single person or by a couple.
- If the adopter is alone: the adoptee will take the name of the adopter
- If the adopter is married: the name of the spouse can be appended to the name of the adopter with his consent
- If the adopters are in a couple: They can choose to give the adopted child the name of the mother or the father, or their two names joined together within the limit of one name per parent.
The choice of name will be included in the adoption judgment.
In this case the links with the biological family are in principle maintained. However, the court may substitute the name of the adopters for the biological name of the adoptee.
And, unless otherwise specified, the name of the adopter may be added to the name of the adoptee.
However, if the name of the adopter is double: the adopter must choose one.
If the adoption is made by two spouses, the adopters will have to choose between the name of the wife or that of the husband (or their names joined together within the limit of one name per person).
In case of disagreement, the name of the husband will be chosen and given to the adoptee.
Name change by marriage
Contrary to what one might think, a wife does not lose her last name, her maiden name always remains valid and will often be requested by the administration. It is therefore by way of custom (taken up by law) that a wife bears the name of her spouse.
With divorce, the principle is that each of the spouses takes their name back, but it may happen that the woman asks to keep the husband's name, in particular for family reasons (keep the same name as their children) or professional (artists, writers … Known only as the husband).
In this case, it will be necessary to obtain the consent of the husband. If he refuses, it will be up to the JAF to assess the legitimacy of the request.
However, this right could be revoked if the woman misused the name.