Is the change of children's names agreed in Ningbo divorce agreement valid?

When Ms. Zhang and her husband divorced, they agreed that the child would be raised by Ms. Zhang, and the man agreed that the child would follow Ms. Zhang's surname. But once the divorce certificate was received, the man went back on his word and did not cooperate with the police station to change his name. Does the agreement on the change of surname written in black and white in the divorce agreement count? Conclusion First: The agreement on changing the name of the child in the divorce agreement is binding on both parties. However, the change of the child's name is a household registration item, which requires both parents to go to the public security organ to handle it. If one party does not cooperate, the other party cannot unilaterally force the change, but can sue to require it to perform the agreement. After the judgment takes effect, it can be handled by applying for legal documents in force. This article makes the line "agreed validity-handling rules-relief path" clear.

Valid 1. Agreement: Legal Basis of Surname Agreement and Right of Name

A name is a sign of citizenship, and changing a name is an exercise of the right to a name. As far as minor children are concerned, the right of name is exercised by their parents, and how to deal with it when the parents disagree is the crux of such disputes. Article 1015 of the the People's Republic of China Civil Code stipulates that a natural person shall take the father's or mother's surname, except where there are other legal circumstances (e. g. the surname of the dependant is chosen because he is supported by a person other than the legal dependant, etc.). This provision addresses the "surname" rule and does not mean that either party may unilaterally decide to change it. At the level of household registration management, Article 18 of the Regulations on the People's Republic of China Household Registration stipulates that when a person under the age of 18 needs to change his name, he or his parents or adopters shall apply to the household registration authority for change registration-"parents" are expressed side by side. In practice, both parents are required to apply together or express the same meaning. The "Reply of the Ministry of Public Security on Issues Concerning the Change of Children's Names after Parents' Divorce" further clarifies: If the two parties to the divorce have not negotiated or negotiated without reaching an agreement, and one of them requests to change the name of the child, the public security organ may refuse to accept it. According to this, three conclusions can be confirmed: first, the agreement on the children's surname in the divorce agreement belongs to the property and personal arrangement clause expressed by both parties and is binding on both parties; Second, the agreement cannot replace administrative procedures. Both parties must be present to handle the name change. The public security organ shall handle the registration on the basis of "parents' agreement". Third, when one party refuses to cooperate, the agreement is not a waste of paper, and the other party may sue and the other party.

2. judicial caliber: unilateral change of surname is not protected, the breaching party is responsible.

Judicial practice has long been stable in the dispute over "one party changing its name without authorization. As early as 1981, the Supreme People's Court issued a reply on the change of children's surnames: if one of the parents unilaterally changes the children's surnames without consultation, and the other party raises an objection and causes a dispute, it shall persuade them to restore the original surnames; if it is really necessary to change, it shall also be subject to the consensus of both parties. This caliber continues to this day and is in line with the approval of the Ministry of Public Security. The logic of the court's treatment in practice can be summarized in three points: first, if the divorce agreement is valid, it will be performed in accordance with the agreement.-- If the agreed change content and time limit are specific and clear, the breaching party may request the breaching party to cooperate; second, unilateral renaming without consensus may be reinstated.-If the child's name is changed at the police station without authorization, the other party has the right to sue for the restoration of the original surname, and the court usually supports the restoration; third, identity behavior is not compulsory but responsibility can be pursued.-- Cooperating with the change of name is an obligation closely related to personal status. After the court's judgment, it cannot be enforced like a monetary debt. However, the breaching party may claim compensation for the losses caused by the breach (such as the cost of re-processing documents, mental distress, etc.), and the judgment itself can be used as the basis for applying to the public security organ for the change of name. It should be noted that the right of name of the child shall be returned to his/her exercise when he/she reaches the age of 18: the child has the right to decide whether to change his/her name or not, and the parents' agreement and dispute will no longer bind him/her.

3. Scenario Breakdown: How to Deal with Four Common Scenarios

1. the divorce agreement stipulates to change the surname, and the other party refuses to cooperate.: Only by keeping the contract can he sue for performance of the agreement, and apply for change at the household registration window with the effective judgment. The litigation focuses on submitting the agreed divorce agreement, divorce certificate and evidence of the other party's refusal to cooperate.
2. The divorce agreement does not agree, one party arbitrarily changes the surname of the minor child. If the other party sues for restoration, the court generally supports the restoration of the original surname; If the child has been studying under a new name and has lived for a long time, the court will weigh the interests of the child, but it is still difficult to maintain the unilateral unauthorized change.
3. Refusal to cooperate in updating student status and certificates after changing surname: The name change involves multiple information such as ID card, household registration book, student status file, social security, passport, etc. If one party delays cooperation and causes actual losses, the other party may claim together.
4. Refusal to pay alimony on the grounds of changing one's surname: alimony payment and the child's surname are two different things, and the non-direct dependant party may not stop paying alimony on the grounds that the other party changes his surname or refuses to change his surname, otherwise it constitutes a breach of contract and the child may claim separately.

4. operation steps and material preparation

the process is suggested to be divided into five steps: the first step is to negotiate and determine, to discuss the change of surname before divorce, and to do it on the spot first; The second step is to write down the agreement specifically-the changed surname, the time limit for handling, and the liability for breach of contract if one party does not cooperate within the time limit. It is better to state such clauses as "if one party does not cooperate within the time limit, the other party, the other party has the right to apply for handling separately with this agreement"; Step, when both parties apply to the public security organ, they generally need to bring their ID cards, household registration books, divorce certificates or effective legal documents, written applications and medical certificates of the child's birth; the fourth step, if one party does not cooperate, sue the court for performance of the agreement or restoration The original surname; the fifth step, after the judgment takes effect, apply to the police station where the child's household registration is located for change registration with the effective judgment document. What needs to be reminded is that there are slight differences in the specific requirements of the household registration windows in different places for materials. Before handling, you can first inquire about the local service guidelines through the "Zheli Office" APP or Zhejiang Government Service Network, subject to the announcement of the public security organs.

5. common mistakes

myth 1: once the divorce agreement is written, you can change your name unilaterally. The correct solution: the name change of a minor needs to be applied by both parents. The public security organ will not accept the divorce agreement unilaterally, and the agreement alone cannot be handled.

Myth 2: If the other party does not cooperate, there is no way out. Positive solution: you can sue for performance of the agreement, and after the judgment comes into effect, you can change it with the judgment document; if you change your name unilaterally without authorization, the other party can also sue for restoration.

Myth 3: Children's names can be changed at will. Positive solution: The change must comply with the law and public order and good customs, and must not harm the legitimate rights and interests of the other party. The name change of adult children must also be handled voluntarily and in accordance with legal procedures.

Details of the landing of 6. default relief.

There are several details worth noting when one party does not cooperate with the litigation relief when the name is changed. First, the statement of the application-requesting "to order the defendant to cooperate with the plaintiff to handle the registration procedures for the change of surname for the children born in wedlock", so as to avoid only writing "confirm that the agreement is valid" and cannot be implemented. Second, the liquidated damages clause-the divorce agreement stipulates "failure to cooperate with daily payment of liquidated damages" or "compensation" compensation ", the judgment can be supported together to make the cost of breach of contract concrete. Third, after the judgment comes into effect, the household registration window can handle the name change for minors according to the effective legal documents without waiting for the cooperation of the other party. Fourth, the linkage after the change-timely update of student status, social security, medical insurance, passport, etc. after the name change is successful, if cross-departmental information is involved, first confirm the required materials to the school and relevant departments, extreme cases-if one party loses contact for a long time, it can obtain an effective judgment through procedures such as public announcement service, and then handle it with the judgment, without having to give up rights protection because" no one can be found. What needs to be reminded is that the judgment involving the change of the name of a minor may encounter subtle differences in the household registration policy during the implementation. Confirm the document format and requirements with the household registration window before processing, which can reduce the round trip.

7. FAQ

if one party does not cooperate with the change of name, will the police station handle the matter with the judgment after the court makes a judgment?

Will. After the effective judgment confirms the agreement and cooperation obligation to change the name, the parties may apply to the household registration window with the judgment and identity materials, and the public security organ shall execute the document in accordance with the effective legal document. If individual windows have different understandings of the documents, they may be required to explain the reasons in writing or report to the higher public security organ, and if necessary, apply to the court to issue a notice of assistance in execution.

Will the change of surname affect the child's maintenance and inheritance rights?

It won't. The name is only an identity symbol, and the relationship between parents and children will not change due to the change of surname, and the obligation of raising and inheritance rights will not be affected; under Article 1015 of the Civil Code, the parent-child relationship will not be changed by the father's or mother's surname itself.

The child has already gone to registered permanent residence and school. Can he change it back?

You can apply, but it involves the linkage change of student status and certificate information, and the procedures are more complicated. If the name is changed unilaterally without negotiation, the other party can apply for restoration and obtain the support of the court, and the registration can be restored with the judgment.

The divorce agreement only says "the child lives with the mother" and does not write the surname. can the mother change the surname of the child by herself?

Can't. Who to live with does not mean having the right to unilaterally decide the surname. If there is no agreement to change the surname, the parents must still reach an agreement to change the surname. After unilateral name change, the father has the right to request restoration.

The other party still does not cooperate when the judgment comes down. What should I do?

Cooperating with household registration is a matter that can be performed by others or entrusted by the administrative agency. In practice, it can be applied to the household registration window separately with the effective judgment; if the other party refuses to cooperate and causes losses, it can also apply for delayed performance in enforcement. Liability or claim compensation in subsequent litigation.

Practical Experience of 8. Lawyers

the divorce agreement stipulates that the child will follow and change his or her surname. It is very common to sign it in black and white, but the other party turns against him and does not cooperate with him to go to the police station. We must first distinguish two things: the agreement itself is valid and binding on both parties; but the change of the child's name is a household registration matter, which requires both parents to go to the public security organ to handle it, and one party cannot unilaterally force the change. In other words, there is a formality between "the agreement is valid" and "it can be done by itself. Many parties mistakenly thought that the agreement could be changed by themselves, and a trip to the police station was blocked back, in vain.

If the other party does not cooperate, the correct remedy path is to sue for performance of the agreement. After getting the effective judgment, apply for registration of change with the effective legal documents, thus bypassing the dead knot of "the other party must be present and sign. To make this path smooth, evidence preparation should focus on two points: first, the agreement does agree to change the name; second, the other party refuses to cooperate without justifiable reasons. Chat records, written reminders and communication records can all be fixed. The statement of the lawsuit request should be in line with the requirements of household registration, so as to avoid only requesting "confirmation of the validity of the agreement" but not going through the formalities. In addition, if the agreement can also agree on the liability for breach of contract for non-cooperation, the binding and negotiating power will be stronger in the future.

There are also two points that are easy to step on. Don't go through the partial door of "change first and make up later"-unilaterally changing the name itself is not protected, and may also constitute a breach of contract, but make your own position passive; moreover, the change of name also involves a series of matters such as school status and social security in the growth of children. The cost of tossing is not low, so it is worth thinking about whether it is really necessary. At the negotiation level, you can package and design the terms of cooperation in handling name changes and alimony, visits, property delivery, etc., and exchange what the other party cares about for him to be present at one time. The name problem may seem trivial, but writing it clearly and neatly can save a lot of unnecessary pulling in the future.

The agreement on the change of children's surnames is binding in effect, requires both parties to be present in procedure, and relies on litigation for relief. The three are indispensable. For parents preparing for divorce, the safest way is to write the surname arrangement into the divorce agreement and attach the liability for breach of contract, which can be handled on the spot as soon as possible to avoid the sequelae of "the agreement is signed and the formalities are delayed"; For the party who has already gone back on his word, cooperation is not only a performance obligation, but also related to the child's household registration and school stability. Delay will only enlarge the contradiction. The interests of the child always come first-the dispute over surnames should not turn into a war of attrition in the parent-child relationship.