Can the legitimate child of a father follow the surname of his mother?

TONG SEK EE v. HO SHU JOON & ANOR [2021] 3 CLJ 119

• Tong Sek Ee (“Mother”) and Ho Shu Joon (“Father”) were married in 2013 but the marriage did not last long.

• In 2016, 4 days after she had given birth to their second child (“Child”), Mother filed for a divorce petition on the ground that the Father committed adultery with another woman.

• When Child was born, Mother registered his name using her surname, “Tong”, and not that of the Father, “Ho”.

• The marriage was eventually dissolved pursuant to a court order by consent (“Court Order”) where the parties agreed on matters pertaining to the custody, care and control of the children, maintenance, access and division of property.

• The Child’s name spelt out in the Court Order followed the Mother’s surname.

• The Father later filed applications at the High Court to vary the terms of his access to his children as well as to have the Child’s surname changed from “Tong” to “Ho”, to follow his surname.

• To support his application, Father submitted, amongst others, that Child was his legitimate child and the Child’s surname should follow that of the father as provided for under section 13A(1) of the Births and Deaths Registration Act 1957 (“Act”) and what the Mother had done contravened the provisions of the Act.

• Objecting to this, Mother argued that the Father was estopped from raising the issue of surname as he had agreed to relinquish his right to raise the issue in the future which was reflected in the draft consent order.

• The High Court found in favour of the Father and the Mother appealed to the Court of Appeal.

The Court of Appeal allowed the appeal on the following basis:

• The language in section 13A(1) of the Act is plain, unambiguous and explicit and admits to one meaning only; if the Child is a legitimate child, ordinarily the surname of the father may be entered.

• The word ‘ordinarily’ is an ordinary word which should be given its natural and ordinary meaning. The word does not carry any special meaning or attribute.

• Based on dictionary definitions of the word ‘ordinarily’, what the Act simply means is that, usually or normally or in the normal course of event, the child’s surname should derive from his father.

• However, at the same time, the Act does not preclude the Mother from registering Child’s name using her surname.

• In other words, while the surname of a legitimate child is ordinarily derived from the father, the surname could also be derived from the mother.

• If the word ‘ordinarily’ is absent from section 13A(1) of the Act, the Child’s surname must solely be that of the father.

• Even though the Mother’s action in registering Child’s name did not seem to be in conformity with the express provision of section 13A(1) of the Act, the Father’s subsequent conduct gave a clear, unqualified indication of his intention to relinquish his right on the use of his surname.

• Child was 10 months old when the Court Order was granted in 2018. Child’s name and his identity card number and the provision on maintenance of Child were all clearly spelt out in the Court Order. The Father knew then that his son did not carry his surname.