Common Law Name changes appear to be invalidated by Hawaii Rev. Statutes §574-5 according to 81. Kushner, supra note 20, at 328–29 n.79 (noting that Hawaii, Louisiana, Maine, and Oklahoma have abrogated the common law name))
§574-5 Change of name: procedure. (a) It shall be unlawful to change any name adopted or conferred under this chapter...
However the only case law I found in Hawaii seems to indicate otherwise:
Jech v. Burch, 466 F. Supp. 714 - Dist. Court, D. Hawaii 1979 provides:
The name-change law has been used as though it applied to any person living in Hawaii. The statute itself, however, only makes it unlawful to change "any name adopted or conferred under this chapter." (emphasis added)
I know of no general requirement of law in the absence of a statute that any special procedures must be followed to change one's name. The common law was, quite clearly, that one was free to call himself by whatever name he wished. Secretary of Commonwealth v. City Clerk of Lowell, Mass., 366 N.E.2d 717 (Mass.1977). In any event, plaintiffs Jech and Befurt did not follow this procedure.
Plaintiffs have a Constitutionally protected right to give their own child any surname they choose.
The refusal of the registrar of births to accept the surname "Jebef" as the child's surname is a deprivation under color of state law of a right secured by the Constitution of the United States.
Defendants have failed to show any reasonable relation to some purpose, within the competency of the State to effect, why this right should be curtailed.
To the extent that H.R.S. § 574-2 (1976) prohibits the exercise of this right, the statute is unconstitutional.
Hi Rev Stat §1-1 provides:
The common law of England, as ascertained by English and American decisions, is declared to be the common law of the State of Hawaii in all cases, except as otherwise expressly provided by the Constitution or laws of the United States, or by the laws of the State, or fixed by Hawaiian judicial precedent, or established by Hawaiian usage; provided that no person shall be subject to criminal proceedings except as provided by the written laws of the United States or of the State. [L 1892, c 57, §5; am L 1903, c 32, §2; RL 1925, §1; RL 1935, §1; RL 1945, §1; RL 1955, §1-1; HRS §1-1]
*Note, however, the Hawaii name change statute was enacted in 1860, prior to the adoption of the common law in 1892 and the common law reception statute cited above specifically excludes parts of the common law in conflict with "the laws of the State, or fixed by Hawaiian judicial precedent, or established by Hawaiian usage."
Presumably the 1860 statute, predating the reception of the common law in Hawaii could be seen as a statute *not* in aid of the common law (as it did not exist when enacted) and a pre-existing Hawaiian usage/custom even though it was ruled unconstitutional in regards to naming of a child and also a previous statute requiring married woman to take husband's surname up until 1975 was ruled unconstitutional pursuant to the equal rights provision of the Hawaii constitution (Cragum [or Cragun depending on source] v. Hawaii and Kashimoto, Civ. No. 43175 (1st Cir. Ct. of Hawaii, Jan. 27,1975), cited in 1 WOMEN L. REP. 1.162 (March 1st, 1975) and the statute has since been amended to allow married couples to retain or change their names accordingly.
For the foregoing reasons we believe common law name changes do not exist in Hawaii as the statutory method predates the adoption of the common law and Hawaiian custom/usage appears to not have a common law method of name change.