Civil and Commercial Perspective... Can the ex-wife change the child's surname refused to pay support.
Published:
2022-12-01
Case Import Zhang and Li got married on May 11, 2012 and gave birth to a daughter Zhang Xiaomou in November 2013. In 2018, both parties were divorced by court decision. The legitimate daughter Zhang Xiaomou was sentenced to be raised by Li. Zhang paid alimony and visited the children before the 10th of each month. Later, Li took the child to remarry abroad and changed the child's surname to the current husband's surname without permission. Zhang was very angry with his ex-wife for changing her surname for her children and wanted to fight against his ex-wife's change of surname by refusing to pay child support. Lawyer's opinion 1, according to the provisions of the law and judicial interpretation, Zhang has no right to refuse to pay alimony. Article 1085 of the the People's Republic of China Civil Code stipulates that if, after divorce, a child is directly raised by one party, the other party shall bear part or all of the alimony. The amount of the expenses to be borne and the length of the period shall be agreed upon by both parties; if the agreement fails, the people's court shall make a judgment. The payment of maintenance is a legal maintenance obligation that should be fulfilled by the parent who does not directly raise the child. Article 59 of the Interpretation (I) of the Supreme People's Court on the Application of the Marriage and Family Code of the the People's Republic of China Civil Code stipulates that parents shall not refuse to pay child support because of their daughter's change of surname. If the father or mother changes the surname of the child to the surname of the stepmother or stepfather without authorization and causes a dispute, it shall be ordered to restore the original surname. It can be seen that in this case, Zhang has no right to refuse to pay alimony based on his ex-wife changing his child's surname. However, because Li's act of changing the child's surname violated the provisions of Article 59 of the (I) of the Supreme People's Court on the application of the Marriage and Family Code of the the People's Republic of China Civil Code, Zhang can request Li to restore his child's surname in accordance with the law. 2, the traditional concept that the surname can not be changed, but in real life often have a variety of changes in the performance. A surname is a sign and symbol that indicates a person's family kinship and continuity. As for the son with the father's surname, it is accompanied by the emergence of private ownership, is the inevitable product of matriarchal society to patriarchal society. Through thousands of years of reproduction, this traditional concept has been deeply rooted in people's minds, forming a universal folk custom. In general, even if children cannot live with their parents due to their parents' divorce, their surnames do not need to be changed based on the recognition of blood relationship and respect for folk customs. In real life, the specific manifestations of a parent changing the surname of a minor child include the following situations: The first is that one parent changes the child's surname to his own surname after divorce; the second is that one parent changes the child's surname to the surname of the stepfather or stepmother; the third is that one parent changes the child's surname to the surname of the third person after divorce; the fourth is marriage During the existence of the relationship, one parent changes the child's surname to the other parent or another person. The first of these situations is most common in practice. Judging from the past situation, parents who unilaterally change their children's surnames are generally handled by the public security organs, and there are also appeals to the court for determination. In practice, the public security organs generally deal with whether they agree to change their children's surnames in accordance with their industry normative documents. 3. How to solve the problem of one parent changing his surname. Because minor children or adult children who cannot live independently lack the corresponding capacity for civil conduct, the change of their surname is mostly proposed by one parent, which often causes strong dissatisfaction from the other parent, and often refuses to pay child support as a means of protest. In order to solve this problem, Article 18 of the "Household Registration Regulations" of the Ministry of Public Security stipulates that the household registration authority may change the names of minor children based on the application of the father or mother and in accordance with legal procedures." The legislative consideration should be that, in general, the meaning of one of the spouses can represent the agreement of both parties. However, after the divorce, if one of the parties requests to change the name of the child without consultation or consultation without reaching an agreement, the public security organ may refuse to accept it; if one party obtains the change of the name of the child because of concealing the facts of the divorce from the public security organ, if the other party requests to restore the original name of the child and the divorce parties fail to reach an agreement, the public security organ shall restore it. To sum up, the change of children's surnames should, in principle, be subject to the unanimous consent of parents. However, in the case of a unilateral change in the surname of a child by one of the parents, the person who does not directly raise the child may not refuse to pay child support on this basis. Links to legal provisions 1. Article 101 of the the People's Republic of China Civil Code A natural person shall enjoy the right of name and shall have the right to decide, use, change or permit others to use his own name in accordance with the law, but shall not violate public order and good customs. 2. Article 1015 of the the People's Republic of China Civil Code A natural person shall take his father's surname or his mother's surname, but in any of the following circumstances, he may choose a surname other than his father's surname and his mother's surname: (I) select the surnames of other lineal elders; the surname chosen by the (II) for being supported by a person other than the legal dependant; (III) there are other legitimate reasons that do not violate public order and good customs. The surnames of natural persons of ethnic minorities may follow the cultural traditions and customs of their own ethnic groups. 3. Article 1084, paragraph 2, of the the People's Republic of China Civil Code also stipulates that after divorce, parents still have the rights and obligations to raise, educate and protect their children. 4. Article 1085 of the the People's Republic of China Civil Code stipulates that after divorce, if the children are directly raised by one party, the other party shall bear part or all of the maintenance. The amount of the expenses to be borne and the length of the period shall be agreed upon by both parties; if the agreement fails, the people's court shall make a judgment. 5. Article 59 of the Interpretation (I) of the Marriage and Family Code of the the People's Republic of China Civil Code stipulates that parents shall not refuse to pay child support due to their daughter changing her surname. If the father or mother changes the surname of the child to the surname of the stepmother or stepfather without authorization and causes a dispute, it shall be ordered to restore the original surname. 6. Article 18 of the Regulations on the People's Republic of China Household Registration: Article 18 A citizen who changes his name shall be handled in accordance with the following provisions: When a (I) or a person under the age of 18 needs to change his or her name, he or her parents or adopters shall apply to the household registration authority for registration of the change; When a person (II) 18 years of age or older needs to change his or her name, he or she shall apply to the household registration authority for registration of the change.
Case Import
Zhang and Li got married on May 11, 2012 and gave birth to a daughter Zhang Xiaomou in November 2013. In 2018, both parties were divorced by court decision. The legitimate daughter Zhang Xiaomou was sentenced to be raised by Li. Zhang paid alimony and visited the children before the 10th of each month. Later, Li took the child to remarry abroad and changed the child's surname to the current husband's surname without permission. Zhang was very angry with his ex-wife for changing her surname for her children and wanted to fight against his ex-wife's change of surname by refusing to pay child support.
Lawyer's opinion
1, according to the provisions of the law and judicial interpretation, Zhang has no right to refuse to pay alimony.
Article 1085 of the the People's Republic of China Civil Code stipulates that if, after divorce, a child is directly raised by one party, the other party shall bear part or all of the alimony. The amount of the expenses to be borne and the length of the period shall be agreed upon by both parties; if the agreement fails, the people's court shall make a judgment. The payment of maintenance is a legal maintenance obligation that should be fulfilled by the parent who does not directly raise the child.
Article 59 of the Interpretation (I) of the Supreme People's Court on the Application of the Marriage and Family Code of the the People's Republic of China Civil Code stipulates that parents shall not refuse to pay child support because of their daughter's change of surname. If the father or mother changes the surname of the child to the surname of the stepmother or stepfather without authorization and causes a dispute, it shall be ordered to restore the original surname.
It can be seen that in this case, Zhang has no right to refuse to pay alimony based on his ex-wife changing his child's surname. However, because Li's act of changing the child's surname violated the provisions of Article 59 of the (I) of the Supreme People's Court on the application of the Marriage and Family Code of the the People's Republic of China Civil Code, Zhang can request Li to restore his child's surname in accordance with the law.
2, the traditional concept that the surname can not be changed, but in real life often have a variety of changes in the performance.
A surname is a sign and symbol that indicates a person's family kinship and continuity.
As for the son with the father's surname, it is accompanied by the emergence of private ownership, is the inevitable product of matriarchal society to patriarchal society. Through thousands of years of reproduction, this traditional concept has been deeply rooted in people's minds, forming a universal folk custom. In general, even if children cannot live with their parents due to their parents' divorce, their surnames do not need to be changed based on the recognition of blood relationship and respect for folk customs.
In real life, the specific manifestations of a parent changing the surname of a minor child include the following situations:
The first is that one parent changes the child's surname to his own surname after divorce; the second is that one parent changes the child's surname to the surname of the stepfather or stepmother; the third is that one parent changes the child's surname to the surname of the third person after divorce; the fourth is marriage During the existence of the relationship, one parent changes the child's surname to the other parent or another person. The first of these situations is most common in practice. Judging from the past situation, parents who unilaterally change their children's surnames are generally handled by the public security organs, and there are also appeals to the court for determination. In practice, the public security organs generally deal with whether they agree to change their children's surnames in accordance with their industry normative documents.
3. How to solve the problem of one parent changing his surname.
Because minor children or adult children who cannot live independently lack the corresponding capacity for civil conduct, the change of their surname is mostly proposed by one parent, which often causes strong dissatisfaction from the other parent, and often refuses to pay child support as a means of protest.
In order to solve this problem, Article 18 of the "Household Registration Regulations" of the Ministry of Public Security stipulates that the household registration authority may change the names of minor children based on the application of the father or mother and in accordance with legal procedures." The legislative consideration should be that, in general, the meaning of one of the spouses can represent the agreement of both parties. However, after the divorce, if one of the parties requests to change the name of the child without consultation or consultation without reaching an agreement, the public security organ may refuse to accept it; if one party obtains the change of the name of the child because of concealing the facts of the divorce from the public security organ, if the other party requests to restore the original name of the child and the divorce parties fail to reach an agreement, the public security organ shall restore it.
To sum up, the change of children's surnames should, in principle, be subject to the unanimous consent of parents. However, in the case of a unilateral change in the surname of a child by one of the parents, the person who does not directly raise the child may not refuse to pay child support on this basis.
Links to legal provisions
1. Article 101 of the the People's Republic of China Civil Code A natural person shall enjoy the right of name and shall have the right to decide, use, change or permit others to use his own name in accordance with the law, but shall not violate public order and good customs.
2. Article 1015 of the the People's Republic of China Civil Code A natural person shall take his father's surname or his mother's surname, but in any of the following circumstances, he may choose a surname other than his father's surname and his mother's surname:
(I) select the surnames of other lineal elders;
the surname chosen by the (II) for being supported by a person other than the legal dependant;
(III) there are other legitimate reasons that do not violate public order and good customs.
The surnames of natural persons of ethnic minorities may follow the cultural traditions and customs of their own ethnic groups.
3. Article 1084, paragraph 2, of the the People's Republic of China Civil Code also stipulates that after divorce, parents still have the rights and obligations to raise, educate and protect their children.
4. Article 1085 of the the People's Republic of China Civil Code stipulates that after divorce, if the children are directly raised by one party, the other party shall bear part or all of the maintenance. The amount of the expenses to be borne and the length of the period shall be agreed upon by both parties; if the agreement fails, the people's court shall make a judgment.
5. Article 59 of the Interpretation (I) of the Marriage and Family Code of the the People's Republic of China Civil Code stipulates that parents shall not refuse to pay child support due to their daughter changing her surname. If the father or mother changes the surname of the child to the surname of the stepmother or stepfather without authorization and causes a dispute, it shall be ordered to restore the original surname.
6. Article 18 of the Regulations on the People's Republic of China Household Registration: Article 18 A citizen who changes his name shall be handled in accordance with the following provisions:
When a (I) or a person under the age of 18 needs to change his or her name, he or her parents or adopters shall apply to the household registration authority for registration of the change;
When a person (II) 18 years of age or older needs to change his or her name, he or she shall apply to the household registration authority for registration of the change.
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