Hon. W. A. Davis Opinion No. O-3.525
State Registrar Re: Whether or not an ille-
Texas
. . State
- Board of Health gitimate
.. child
. . born. to , .a
Austin, Texas aivorcea motner takes tne
surname of her divorced hus-
Dear Mr. Davis: band or her maiden name?
We beg to acknowledge receipt of your letter of
June 4, 1941, as follows, to-wit:
“Will you please advise me as to the legal
name of an illegitimate child born to a divorced
mother, who retained the name of her former hus-
band? Should such a child take the surname of
her divorced husband, or her maiden. name before
she married?”
As a relic of the CommonLaw of marriage, the wife,
upon her marriage, takes the name of her husband. This is
the legitimate fruit of the CommonLaw conception, that upon
marriage the identity of the wife as a juristic person was
merged in that of her husband.
There is no statute of Texas touching the question
but it has been decided by the Supreme Court that the rule oh
the CommonLaw, in the absence of a statute, governs the mat-
ter.
“Upon marriage the law confers upon the wife
the name of her husband, and this continues to be
her lawful name till changed by a subsequent mar-
riage, or by the decree of a competent court as
on final disposition of the divorce proceeding
where such change of name is specially prayed for,
-- a relic of the CommonLaw fiction of unity.
While there is nothing in our statute compe~lling
the wife to take or assume the name of her husband,
yet by operation of law her husband’s surname be-
comes her’s upon marriage. It has been held that
she is not bound by a judgment in a suit against
her in her name, as where she is cited therein by
publicat ion D In such case she is not a party to
the suit 0u -- Speer’s Law of Marital Rights (3d
Ed.) p. 28, X 26.
Hon. W. A. Davis, page 2 (O-3525)
The text quoted cites Murphy v. Coffey, 33 Tex.
508, and Freeman v. Hawkins, 77 Tex. 1498.
The case of Barkley v. Dunke, 87 S.W. 1147, by
our Supreme Court illustrates the effect of marriage upon
the status of the wife in this, that there had been a void
marriage because the husband had a living wife, neverthe-
less the court held that the marriage had the statutory ef-~
feet to emancipate the woman from the disability of infancy,
which status began with and abided beyond the marriage sta-
tus. There had been a dissolution of the attempted marriage
in that case. See Speer's Law of Marital Rights (3d Ed.)
page 27, X 25.
From these authorities it follows that your ques-
tion should be answered to the effect that in the case you
put the illegitimate child takes the name of its mother,
which, of course, in the case you state is the same as that
of her divorced husband.
Very truly yours
ATTORNEY
GENERAL
OF TEXAS
By /s/ Ocie Speer
Ocie Speer, Assistant
APPROVED
JUN 11, 1941
FIRST ASSISTANTATTORNEY
GENERAL
APPROVED:OPINIONCOMMITTEE
BY: BMB, CHAIRMAN
OS:m:vb