- By Paul SITGES
The change of name and surname from the 30th of april of 2021 and the entry into force of the law 20/2011
In date of the writing of the present blog, any change of name or surname is ruled under the regime of the Civil Registry Law of 8th June 1957.
Instead, from the 30th of April of 2021 the change of name and surname will be ruled by the Law 20/2011, of 21st July, of the Civil Registry, that in its transitory dispositions, established the entry in force of this legal reform on the 30th of April.
Up until now, the legal regulation was created before our Constitution. Now then, with the entry in force of this new Law, that will be in force around mid 2021, adapts to the constitutional criteria and modernizes the configuration of our Registry, computerizing it and making it more accessible electronically. It has to be borne in mind that, some of the criteria that this new Law is establishing, have already been applied by our Courts. As an example, we can find the Judgment of the Supreme Court of 17th of February, 76/2015, in which it is established that the interests of the minor that the new Law inspires to resolve about the change of surnames, even if it is not in force yet, is clear that must be taken into account accordingly under the corrector interpretation of the current Law and using the constitutional values that inspire it.
Differences between the regulation of 1957 and the Law that will entry into force in 2021
The first important different that can be found is the possibility to apply for the change of name and surname by the interested party when it surpasses the age of 16, while before the new regulation, in order to apply for the modification of the name or surname, you ought to be of legal age (18+), or act with the express consent of the legal guardian.
In order to advance gender equality, both parents will be allowed to decide the order of the surnames in the birth registration, thus eliminating the historical prevalence of the paternal name over the maternal one. It should be added that any reference to non-marital filiation is eliminated, thus fully equating the latter with marital filiation.
Likewise, the procedure for changing names and surnames, which until now was initiated by means of a file from the Ministry of Justice, will now be authorized directly by the Manager of the Civil Registry, allowing greater processing speed. Said registration procedure will be authorized provided that the interested party proves the actual/current use of his new name.
In terms of name changes:
The justa causa requirement, which regulates article 60 of the current Civil Registry Law, disappears, thus giving more flexibility to authorize the change in the registry.
On the other hand, as we aforementioned, the name change procedure that until now was initiated by means of a file from the Ministry of Justice, will be authorized directly by the person in charge of the Civil Registry. What will speed up the procedures. Said registration procedure will be authorized provided that the interested party proves the habitual use of his new name.
Through article 51 of the new Law, the principle of free choice of the proper name is established, being that, when choosing a name, it will be limited to the following:
“1. No more than two simple names or one compound may be entered. 2.º No names that are contrary to the dignity of the person or those that make identification confusing may not be imposed. 3. The name of one of his siblings with identical surnames may not be imposed on the newborn, unless he or she has died. "
Likewise, article 52 establishes the requirement of the regular use/habitual use of the name to be requested. This means that, in order to access the modification of the name, a name cannot be chosen at random, but must be submitted together with the request for modification of the name before the Civil Registry of the domicile of the interested person, attaching sufficient documentation that proves that it is known by the name that wants to be registered by friends, family, co-workers or school companions, etc., as well as it will also be necessary to provide two witnesses who can corroborate this habitual use in different aspects of the daily life of the interested.
In terms of surname changes:
In the same way as with the change of name, the new regulation allows the Manager to authorize the change of surnames in the following cases in a more agile way and by means of a simple declaration of will under article 53 of the Civil Registry Law:
- The inversion of the order of surnames
- Change the preposition of the preposition "de" to the first surname that would usually be a proper name or will begin with such, as well as the conjunctions "y" or "i" between the surnames.
- The accommodation of the surnames of the children of legal age or emancipated (with the express consent of the parents)
- The orthographic regularization and graphic adaptation to Spanish in the case of foreign surnames
- When on the basis of a later rectified affiliation, it is intended to preserve the surnames that were used before said rectification.
On the other hand, when the change of surnames is not within the aforementioned cases, it must be instructed by means of a file, a more complex procedure that can only be accessed if the requirements established in article 54 of the aforementioned Law are met. Therefore, to authorize a change of surnames outside of the previous assumptions, the concurrence of these three conditions will be necessary:
1) That the surname in the proposed form is used in an habitual way (as it happens with the name change).
2) That the surname or surnames to be joined or modified belong legitimately to the petitioner, that is, they are surnames of the mother or father of the applicant.
3) That the surnames that result from the change do not come from the same line, so each of the surnames must belong to a different line. As a result, the change of surnames in which the modification implies that both surnames requested come from the same line is not allowed, for example, it will not be allowed that a person intends to modify their surnames so that only the surnames that their mother had, therefore, the surnames must come from two different lines except for single-parent families and in other very specific cases.
In cases in which there are certain exceptional circumstances, such as the person concerned being a victim of gender-based violence or their descendants, or it is intended to modify a surname contrary to dignity or that causes serious inconvenience, among other cases, the previous detailed requirements will not be applicable, to which the change of surnames may be authorized by Order of the Ministry of Justice if the rest of the terms established by regulation are met.
In terms of surname changes with a foreign element:
Finally, in article 55, a reference is added to surnames with a foreign element, admitting that those who acquire Spanish nationality may retain their surnames in the way they already hold them, even if it is different from the legal one.
Likewise, in the case of Spaniards who obtain a nationality from another State of the European Union, the change of surnames that has resulted in the other State will be recognized in Spain, provided that it is not contrary to Spanish public order.
These last two modifications of article 54 and 55, however, will not enter into force until April 30, 2021, due to the latest considerations provided by the update of the aforementioned Law on April 29, 2020.
It has to be taken into account that this Law has been modified and postponed several times and has not entered into force yet, so changes might be added to the current drafting, in which case we will try to keep up to date any of the possible ulterior changes.
In conclusion, the new Civil Registry Law modernizes the registry and its procedures, adapting them to the current casuistry, also seeking greater digitization of the Registries and consequently a streamlining of their procedures.
Do you want to change your name or surname? Do you still have doubts about it? Get in touch with one of the professionals specialized in this matter in our office through our online legal consultation services or by making a prior appointment in our office.