TSE (P) v HSJ [2021] 4 MLJ 210

Court of Appeal, Putrajaya

Family Law – Children – Change of child’s surname – Surname of legitimate child

1.    The Appellant and the Respondent were married on 30 March 2013 and had two children, named HEV, born on 30 October 2013, who carries the father’s surname “Ho,” and TJH, born on 17 January 2016, who was registered with the mother’s surname “Tong.”

2.    The marriage broke down in September 2015, and the Appellant accused the Respondent of adultery before filing for divorce on 12 January 2016. Shortly after TJH’s birth, the Appellant registered his surname as “Tong” since the couple was living apart.

3.    The divorce was finalized on 16 November 2016 through a decree nisi by consent. The decree included agreements on custody, care, and access to the children, and TJH’s name was recorded as “Tong.”

4.    Over a year later, on 31 October 2017, the Respondent filed an application to modify access terms (encl 20).

5.    On 9 January 2018, he also applied to change TJH’s surname from “Tong” to “Ho” (encl 25), arguing that section 13A(1) of the Births and Deaths Registration Act 1957 specifies that a legitimate child should ordinarily carry the father’s surname. He claimed the mother acted unilaterally and against the law in registering the surname as “Tong.”.

6.    The Appellant opposed the application, arguing that the Respondent had relinquished his right to contest the surname during divorce negotiations. She cited a draft consent order (Exh “T1”) dated 4 October 2016, where both parties agreed TJH’s name would remain “Tong,” and in exchange, the Respondent was relieved of paying her maintenance or TJH’s tertiary education costs.

7.    The Respondent counter argued that Exh “T1” was inadmissible as it was part of negotiations and not reflected in the finalized decree nisi. He also argued that no agreement could override the legal requirement under section 13A(1) for a father’s surname to be used.

8.    The High Court granted the Respondent’s applications, ordering the child’s surname to be changed to “Ho.” Dissatisfied, the Appellant appealed, leading to the Court of Appeal’s reversal of the surname decision.

2.    Whether the Respondent is estopped from raising issue of surname?

1.    Whether s 13A(1) of Births and Deaths Registration Act 1957 precluded Appellant from registering child’s name using her surname?

 (a)      The Court held that section 13A(1) does not prevent the mother from registering the child’s surname as hers. section 13A(1), states that the surname of a legitimate child “shall ordinarily” be the father’s surname. The key word is “ordinarily,” which means “usually” or “normally”—not “always.” This gives flexibility for exceptions. (AS Hornby, Oxford Advance Learner’s Dictionary (8th Ed), Oxford University Press, 2010 at p 1036)

(b)      The Court was of the view that although it is common for the child to have the father’s surname, the law does not force this. The mother can also use her surname, especially if the circumstances justify it or if both parents agree.

(c)      The Court explained that if Parliament wanted the father’s surname to be mandatory, it would have said “shall only” or “must” instead of “ordinarily. By using “ordinarily,” the law allows parents to choose the surname, depending on the situation. (Manokaram a/l Subramaniam v Ranjid Kaur a/p Nata Singh [2009] 1 MLJ 21; [2008] 6 CLJ 209)

(d)      In the present case, the mother was allowed to register the child’s surname as “Tong”, as section 13A(1) does not make the father’s surname mandatory. The father’s claim that it was unlawful to use the mother’s surname was incorrect as section 13A(1) did not prevent her from doing so, and her action complied with the legal flexibility granted by the statute.

(e)      Thus, the High Court erred in holding that the father’s surname should automatically prevail and held that the mother’s registration of “Tong” was lawful and appropriate under the circumstances.

2.    Whether Respondent estopped from raising issue of surname?

(a)      During divorce negotiations, the father had initially requested the surname be changed from “Tong” (mother’s surname) to “Ho” (his surname) in a draft consent order (Exh “T1”). However, the mother disagreed, and this term (3.b.iv in Exh “T1”) was removed.

(b)      When the divorce was finalized, the decree nisi made no mention of changing the child’s surname, and TJH’s surname remained “Tong.” The father accepted the decree nisi without objecting to TJH’s surname, even though he knew it was “Tong” at the time.

(c)      He took no action to change the surname while TJH was still an infant, even though section 15 of the Act allows changes within the first year of birth. By agreeing to the decree nisi and not raising the issue earlier, the father effectively relinquished his right to contest the surname. [ Asia Commercial Finance (M) Bhd v Kawal Teliti Sdn Bhd [1995] 3 MLJ 189,  Boustead Trading (1985) Sdn Bhd v Arab-Malaysian Merchant Bank Bhd [1995] 3 MLJ 331; [1995] 4 CLJ 283]

(d)      The court cited case in Asia Commercial Finance and Boustead Trading, to show that once an agreement is made (like the terms in the decree nisi), a party cannot go back on it.

(e)      In the present case, the father did not object to this term or raise the surname issue again during the finalization of the divorce, and he accepted the decree without reservation. By accepting the decree nisi, which stated that TJH’s surname would remain “Tong,” the father effectively agreed to the status quo. He did not object or take action to change the surname, despite knowing that the child’s surname was different from his own. This was a clear indication that the father had relinquished his right to challenge the surname change at that time.

(f)        The court was of the view that the father could not change his mind after agreeing to the terms of the decree and waiting for more than a year to file his application.

(g)      The High Court incorrectly allowed the father to revisit the surname issue, even though he had knowingly agreed not to raise it. The Court of Appeal ruled that the father was legally barred (estopped) from requesting a change to his son’s surname because he had already accepted the terms of the divorce decree, which included the surname “Tong,” and had not raised the issue at the time or within the legally allowed timeframe.

2.        Section 13A(1) provides flexibility for legitimate children to carry either parent’s surname, as determined by mutual consent or the specific circumstances of the case.