What’s in a name? Can your ex-spouse sue you for retaining their surname?

This story has significance for readers across Kenya and beyond.

You were married, took your husband's surname and, over the years, built a life around it, but then the marriage ended. It now appears on your identification card, passport, bank records, academic certificates and professional documents. Perhaps your children also bear the same name.

Years later, your former husband remarries and asks you to drop his surname. So, can an ex-spouse legally demand that you stop using their surname? And can they sue you if you refuse?

“There is no law in Kenya that bars a divorced person from the continued use of the surname of the ex-spouse,” says Njuguna Muri, advocate and partner at MMTK law firm, whose response was prepared jointly with associate Purity Wanja.

Under Section 11 of the Trademark Act, the law is cautious on registration of surnames as trademarks, and a surname is only registrable upon evidence of distinctiveness. As such, retaining a surname lawfully carried during the marriage infringes no right of the former spouse.

However, the lawyers say legal issues may arise if the former spouse uses the surname to deceive the public, falsely imply an ongoing marital relationship, obtain financial or legal benefits through misrepresentation, or damage another person's reputation.

In such cases, the unlawful conduct leading to financial or reputational loss, and not merely the use of the surname, would give rise to legal liability.

“If the surname has been officially adopted and appears on official documents such as an identity card, passport, bank records, or professional licences & certificates, it becomes part of the person's legally recognised identity. A court is likely to take into account the practical and legal consequences of requiring that person to change their name, particularly if they have used it for many years,” Mr Muri and Ms Wanja explain.

On the other hand, they add, if the surname is used only socially or informally, changing it may involve fewer practical difficulties.

“Whether the surname is used officially or socially does not determine its legality. The key question is whether the continued use is genuine and lawful, or whether it is being used to mislead, defraud, or falsely represent an ongoing marital relationship.”

So, can anyone claim exclusive rights over a family name?

“No. Kenyan law does not recognise exclusive proprietary ownership of family surnames merely because they belong to a particular family,” they say, adding that under Section 11 of the Trademark Act, which provides that registration of a name as a trademark does not affect the bona fide use of a name by another person.

“The law only protects a mark used in commerce for particular goods or services, but the protection is limited to use as a trademark in the course of trade.”

The lawyers note that there is no Kenyan statute that automatically removes the right of a former spouse to retain the surname acquired through marriage upon divorce. Whether a person continues using the surname is generally a matter of personal choice, provided the continued use is not for an unlawful purpose.

However, the Kenyan Constitution protects the right to human dignity and equality, and a person's identity is an important aspect of personal autonomy. Kenyan courts have also emphasised that human dignity goes to the heart of identity, which must be respected.

“If an individual has been known by a surname for many years; socially, professionally, or legally, a court would likely balance that person’s legitimate interest in maintaining their established identity against the former spouse’s reasons for objecting. Without evidence of unlawful conduct by the former spouse, identity interests may carry considerable weight.”

Still, they share that the practical challenges created by a parent having a different surname. These include friction with the school records, proving the relationship when travelling with the children, as well as the medical records.

“These are primarily practical rather than legal considerations, as there is no law requiring a parent and a child to share a surname,” they say.

In their practice, the lawyers share that many Kenyan mothers with children bearing the father’s surname successfully use their maiden names in daily life by keeping birth certificates, court orders and guardianship documents readily available when needed.

The lawyers caution that Kenyan law recognises that names, especially in business, can carry goodwill and economic value, even though it does not grant absolute ownership of a surname to the exclusion of others using the name.

“The Trade Marks Act allows registration of a trading name, including a surname, and passing‑off doctrine protects unregistered marks where they have acquired reputation and goodwill,” they say.

“For professionals like doctors, lawyers or authors, their ‘name’ functions as both personal identifier and business brand; and where that brand is harmed by another’s misleading use, courts can grant injunctions, damages or account of profits to protect economic interests tied to the name.”

Still, depending on the facts, forcing a person to abandon a long‑used surname could lead to real economic and reputational harm, and Kenyan courts are alive to those risks.

“Where an individual has established a long-standing professional reputation under a surname, compulsory abandonment could affect public recognition, client confidence, academic citations, business goodwill, or professional branding,” they explain.

“Value attaches to a name through reputation and goodwill. Someone who has practised, traded, published or become known under a surname has built goodwill in it, and goodwill is protected through passing off and through registered trademarks where the name is used commercially. Compelling someone to abandon the name would cause harm to the goodwill built.”

What if a widow remarries, is she legally required to abandon her late husband's surname?

“No Kenyan statute requires a widow who remarries to abandon her late husband’s surname. The choice of whether to retain it, adopt the new husband’s surname, or revert to a maiden name is personal, as there is no statutory obligation compelling such a change. The Change of Name Regulations recognise widows as a separate category, requiring a marriage certificate and husband’s death certificate where a widow wishes to change her name but do not impose an obligation to change,” the lawyers explain.

Reporting originally appeared via Business Daily. Read the full source for additional context.