Number 5. September 16, 1974

Number 5. September 16, 1974 Ms. Regina Healy, Commissioner Massachusetts Commission Against Discrimination 120 Tremont Street Boston, Massachusetts 02108 Dear Commissioner Healy: With regard to the issue of whether a creditor might properly condi- tion the granting of credit upon a woman's use of her husband's sur- name, you have asked my opinion on the following question: P.D. i: 49 "Whether, upon marriage, a woman must abandon her sur- name and assume the surname of her husband without an ex- press intent to do so." The short answer to your question is "No."" A person is free to as- sume any name that he or she chooses so long as he or she does so for non-faudulent purposes. Buyarsky, Petitioner, "^ll Mass. 335 (1948). The law will regard a person as assuming the name which he or she takes for his or her own use. See generally, Merolevitz. Petitioner. 320 Mass. 448, 450; Op. Atty. Gen., 73/74-29. No Massachusetts statute compels a woman to adopt her husband's surname. Certain statutes were apparently written upon the assumption that a woman will change her surname upon her marriage, e.g.. G. L. c. 208. § 23. but this type of legislation is not inconsistent with the view that the name change is not compelled, since it has been the prevailing custom, for at least the last two centuries, for a woman to change her surname upon her marriage. The status of the common law of Massachusetts is less clear. The Supreme Judicial Court has not had occasion to rule on this precise question. In 1926. the Court adopted, without discussion, the New York view of the common law, that a married woman who has made use of her husband's surname assumes his surname as her legal name. Bacon V. Boston Elevated Railway, 256 Mass. 30 (1926); Chapman v. Phoenix National Bank, 85 N.Y. 437 (1881). The Bacon case, and certain cases restating the law as espoused in Bacon, e.g. Koley v. Williams, 256 Mass. 601 ( 1929), are of doubtful value as precedent even for the limited proposition that a married woman who makes use of her husband's sur- name assumes his surname as her own. These cases involved the issue of proper automobile registration and the application of the now defunct "trespasser upon the highway doctrine."" (See G. L. c. 90, § 9, as amended by St. 1959, c. 259.) The decisions do not control the case of a woman who has retained the use of her maiden name after her marriage. The Supreme Judicial Court recently decided a case in which the principal issue involved an application of the common law rule that the domicile of a wife automatically follows that of her husband. The Court ruled against the Commonwealth and held that a married woman might have a domicile apart from that of her husband. The remarks of Mr. Jus- tice Braucher who authored the Court's opinion are instructive: "As we have recognized, important changes in popular and legal thinking suggest that 'ancient canards about the proper role of women" have no place in the law. See Surahain v. Surahain. Mass. . n. 7 (1972) Mass. Adv. Sh. (1972) 1461. 1466, n. 7, quoting Phillips v. Martin Morutta Corp.. 400 U.S. 542, 544-545 (1971)." Green v. Commissioner of Corporations and Taxation, December 13. 1973. Mass. Adv. Sh. 1549 at 1554. Finally, the notion that the general "common law" requires that a woman assume the surname of her husband upon her marriage has been significantly deflated by recent scholarly and judicial research on the 50 P.D. 12 subject. There is no universal requirement of the "common law," either in England or in the United States, which compels a woman to change her name upon marriage. See Stuart v. Board of Supervisors of Elections, 266 Md. 440, 295 A. 2d 223 (1972), and authorities cited; MacDougall, "Married Women's Common Law Right to Their Own Surnames," Women's Rights Law Reporter, Vol. 1, No. 3, 1972/73, p. 2; see generally. Opinion of the Attorney General, 73/74-29. In summary, a woman who has retained the use of her maiden name after her marriage is not compelled by Massachusetts law to assume her husband's surname for any purpose. Very truly yours, ROBERT H. QUINN Attorney General