“In English law a person’s name is that by which he himself chooses to be known.”[1]
Despite Baroness Hale’s very clear statement it remains a surprise to some to learn that we have no ‘legal name’ under English and Welsh law. The identity of a person is not a matter of legal formality in that without any legal formality required anyone might reject the name they were given at birth, and that others have known them by, and adopt a new name. A name appearing on one’s birth certificate does not create a ‘legal name’ for the simple reason that in this jurisdiction we do not have a ‘legal name’.
Of course most people do choose to retain and introduce themselves to others using the name given to them by their parents at birth, but there is no requirement to do so. Any person aged over 16 may choose to adopt a new name at any time in their life for any reason, or for no reason at all.[2]
Families are therefore often surprised to learn that there is also no requirement in law for a deceased’s name as recorded and certified by the coroner at their death to correspond to the name that appears on their birth certificate. As a judge of the High Court Chancery Division recently observed[3] “there was nothing improper in allowing the deceased to be buried under the name which he had always used since he had lived in the UK. Although it was not the name which he had been born with.” (Of course we are not actually ‘born with’ a name. We are simply given a label by someone else shortly after our birth.)
A deed poll doesn’t change one’s name
Some of those who adopt a new name will execute a deed poll. But a deed poll does not create any ‘legal name’, it is simply a legal document that provides evidence that the subject has decided to adopt and use a new name. As such a deed poll will be accepted as proof of the choice to adopt a particular name by some organisations, such as banks or EasyJet. But a deed poll does not, as some wrongly think, ‘legally change’ one’s name – simply because we have no ‘legal name’ to be changed in the first place.
Marriage doesn’t change one’s name
Similarly, the act of getting married or entering a civil partnership does not create any new ‘legal name’, it is a mere custom and practice that some people will choose to adopt their spouse’s or partner’s family name and stop using their previous family name on marriage. There is (happily) no requirement of law that any woman must do so.[4]
A Gender Recognition Certificate doesn’t change one’s name
Where a trans person obtains a Gender Recognition Certificate (‘GRC’) under the Gender Recognition Act 2004 this does not create a new name or give rise to any right to adopt a new name (as no such right is needed). Any GRC will be issued in the name the person was using when they applied for the GRC. The subject of a GRC might have chosen to reject their given name at any point in their transition.
Determining the deceased’s name at an Inquest
How then might coroners determine and register the deaths of those who have adopted a different name from the one that was chosen for them by others shortly after their birth? Its perhaps rather more simple than some recent debates might suggest.
Under s.10(1)(b) CJA and on part 1 of the Record of Inquest one of the facts to be found by the coroner (or jury) is the full name of the deceased. There is no requirement to establish and record any previous name or names the deceased has used.[5] So surely this must be referring to the name the deceased had chosen to be known by at their death. Just as with any other matter appearing on the Record of Inquest the degree of certainty a coroner must apply to the question of “what was the deceased’s name” is the balance of probabilities. The name the deceased used at death will be a matter of evidence. It will be determined by the coroner (or jury) having taken account of all the available evidence.
Where the preponderance of evidence is that the deceased had chosen to use and was using a particular name at their death then it is difficult to see why that would not be the name recorded. A deed poll will be very helpful evidence for a coroner, but one is not required for the requisite degree of certainty to be reached.
Of course if there is some doubt about the name the deceased used, with alternative names being used interchangeably by the deceased, such that the coroner cannot come to decision about which name was probably in use at death, then there is nothing in law to prevent two or more alternatives being recorded on the ROI. But that does not mean that ‘also known as ….’ Or ‘formerly known as ….’ should be indiscrimnately used, particularly if the evidence is that the deceased had fully rejected an earlier given name.
‘Deadnaming’ particularly in the context of calling a trans person their given name at birth is considered by most to be highly disrespectful and humiliating.[6] [7] It can feel invalidating to another person not to respect their identity. Proper respect will be shown to the deceased by recording only the name that, on the balance of probabilities, they were choosing to use when they died.
Contentious issues may arise when a person has adopted a new name and the bereaved strongly wish for the deceased’s death to be recorded using their given name at birth. The previous Chief Coroner once described an inquest as “the state’s last posthumous duty to the deceased” emphasising that it is the deceased who should be at the inquest’s heart. Respect for the deceased and recognising the autonomous choices they have made may at times need to prevail over the wishes of the bereaved.
Pragmatic considerations
However, on some occasions the bereaved will have a pragmatic reason to request that a previous or alternative name used by the deceased is recorded on the Record of Inquest (and certified after inquest) particularly when the deceased has recently adopted a new name and for some official purposes, such as executors accessing bank accounts and pensions, a formal record of the deceased’s earlier names may make matters far simpler when dealing with probate (a death certificate not matching the name on a will can cause difficulties) and so might justify a number of aliases being recorded.
Whatever is to be recorded this should always be decided by the coroner (or jury) in each case on its own facts and merits with, your blogger suggests, the deceased’s wishes and values at the forefront of that analysis.
Footnotes
[1] See Hale J (as she then was) in Buchanan v Milton [1999] EWHC B9 (Fam), [1999] 2 FLR 844
[2] A child under 16 or subject to certain care or residence orders will require someone with parental responsibility to consent to a change of name.
[3] Ganoun v Joshi [2020] EWHC 2743(Ch). A case dealing with burial rights over a body where the deceased had for immigration reasons, adopted a new name and date of birth on his arrival in the UK 15 years before his death.
[4] In the same way as a deed poll is used as evidence of a new name, a marriage or civil partnership certificate will usually be accepted by organisations such as banks as sufficient evidence of a person’s choice to adopt their spouse/partner’s family name. However coroners are not normally expected to ask to be shown a marriage certificate to confirm a person, usually a woman chose to follow the patriarchal custom of changing her name on marriage. Indeed given that many women now will never adopt their spouse’s name coroners will usually accept the witness testimony of others regarding whether the deceased was married and whether they had adopted their spouse/partner’s family name or not.
[5] There is no requirement, for example, to determine and record all the different family names that have been used by a deceased person who has been married a number of times, nor to record the previous name of a divorced woman who had adopted her spouse’s family name but then returned to her maiden name on divorce. Although the maiden name of a woman who was married may also be recorded in part 5 of the ROI.
[6] If done in public in court, it may also deprive the person of the confidentiality protections of the Gender Recognition Act 2004 by unnecessarily placing their trans status in the public domain.
[7] If a living person is trans and has a GRC then to identify and record their former name would run contrary to the principles underlying the Gender Recognition Act 2004 could be a criminal offence under s.22 of that Act. For a living trans person without a GRC it may breach their Art 8 rights to reveal their earlier name if doing so would disclose their trans status. However such considerations do not apply with force of law in respect of deceased person.