Divorce, money, and ‘paternity fraud’

Can a husband sue his wife for damages if she has falsely told him that he is the father of her son?

This was the question considered by Mr Justice Cohen in the case of FRB v DCA [2019] EWHC 2816 (Fam) and highlights that financial claims between spouses are commonly treated as part of financial remedy proceedings.

The facts

• The husband (‘H’) and the wife (‘W’) married in 2003. Sometime later a child (‘C’) was conceived and born;
• Throughout the course of H and W’s marriage, C was treated as the child of both H and W;
• In early 2017 H and W’s marriage ran into difficulties and they separated;
• In 2018 H began to hear rumours that W had been having an affair at around the time of C’s conception. A DNA test was carried out and to H’s undoubted horror, he learned that he was not C’s father. H considers this to be a case of ‘paternity fraud’ by W;
• W admitted that she had been engaged in an affair with a third party (‘Mr X’) at the time of C’s conception. W denied seeking to mislead H and stated that she also believed H to be C’s father. She described herself as ‘devastated and full of remorse’ at the situation she had created; and
• H suspects, but does not know for sure, the identity of Mr X. C has no knowledge of Mr X and still believes that H is his biological father.

In response to the discovery of C’s paternity, H issued numerous court applications including:

1. a claim against W for compensation from W of the financial benefit that she has received by virtue of her purported deceit;
2. an application under the Children Act 1989, that W should be ordered to reveal the identity of Mr X to H, so that C can be told of his father’s true identity; and
3. an application for a financial remedy under the Matrimonial Causes Act 1973.

In simple terms, a ‘financial remedy’ is a court order which can divide the financial resources of a couple when they divorce. In the case of almost every divorce, if the divorcing couple have financial issues to resolve, then they will require a financial remedy. The law dictates that the court’s distribution of resources should be fair between the parties, having regard to ‘all the circumstances of the case’.

Mr Justice Cohen has already considered point (2) – the revelation of Mr X’s true identity – in two separate judgments (AB v CD (No. 1) and (No. 2)). He ordered that a letter should be sent to Mr X, asking whether he accepted that he is C’s father. Mr X replied, denying that he was and refusing to engage with the court proceedings. The Judge subsequently ordered that C should be told by W of Mr X’s identity at a time when an independent social worker considers appropriate. H will be told of Mr X’s identity at the same time.

The financial remedy proceedings – point (3) – are ongoing. They are listed for a final hearing in January 2020. It is estimated that the final hearing alone will be 15-20 days in length. At that final hearing, the Judge will need to decide how H and W’s financial resources should be divided.

The claim for deceit

In the meantime, on 28 October 2019, the Judge considered point (1): H’s claim for damages in respect of W’s purported deceit.

H argued that if C’s paternity had been revealed to him from the outset, he would have petitioned for divorce immediately, and would have paid a smaller financial settlement to W as a result. H also wanted to be compensated for gifts and money he had given to W since the discovery that she was pregnant with C. He would not have given those gifts if he knew the truth about C.

Before considering the facts of H’s case, the Judge needed to decide two fundamental legal issues:

1. Is it possible in principle for one spouse to bring a claim for damages against the other in a case of paternity fraud?
2. If it is possible, can this claim be dealt with separately to the financial remedy proceedings? Or, would the paternity fraud claim interfere with the financial remedy proceedings, and therefore be an abuse of process?

The Judge indicated that the first of these questions should be answered in the affirmative. There is already clear legal authority that ‘paternity fraud’ applies to unmarried couples, and the Judge could see no logical reason for the law to treat spouses differently. He was able to imagine limited circumstances in which a former husband may have good reason to bring a claim for paternity fraud against his former wife. This may have sounded like good news to H.

Unfortunately for H, the Judge’s answer to the second question was devastating. The Judge decided that where a husband and wife are engaged in proceedings for a financial remedy, it would not be appropriate to allow H to pursue a free-standing claim for deceit. In providing for financial remedies, Parliament has set out ‘a comprehensive statutory scheme’ for resolving financial issues between divorcing couples. To allow H to bring a separate claim for damages for deceit would undermine the financial remedy proceedings. It would allow a discrete financial issue to be considered outside the scope of that scheme, and therefore interfere with the Judge’s power to award the appropriate financial remedy.

The Judge therefore concluded that H’s claim should be struck out as an abuse of process.

Is all lost for H?

The Judge was clear that H cannot pursue his claim for deceit. But everything is not lost for H. Within the financial remedy proceedings, the court has the power to undertake a ‘full investigation of W’s conduct’. If the court finds that W’s conduct has been such that it would be ‘inequitable to disregard it’, then the court can award W a smaller financial settlement as a result.

However, the Judge sounded a note of caution. He said it would be ‘a difficult task’ to decide whether W’s conduct was sufficiently poor to reach the required standard. Even if the conduct was sufficiently poor, the Judge would then have to consider the ‘more difficult question as to what the financial consequences should be’.

H will have an uphill battle to argue that W should be punished for her bad behaviour. It is unusual for courts to punish spouses for ‘bad behaviour’ when determining financial remedy claims. Even where bad behaviour is established, the court has significant discretion in deciding whether and in what way to ‘punish’ it. H may struggle to persuade the court that W’s bad behaviour should be ‘punished’ at all.

What is the wider relevance of this case?

This case deals with an unusual and tragic situation, but it is also of wider relevance. It drives home the principle that financial claims between spouses nearly always fall to be dealt with within financial remedy proceedings.

This is significant. Financial remedy proceedings are ‘comprehensive’, because they embrace all of the assets and liabilities belonging to the parties. Moreover, in deciding how to divide those assets and liabilities a judge must look at ‘all the circumstances’ of the case, and weigh them against each other.

Spouses therefore cannot deal with some financial issues in isolation, while leaving others unresolved. Judges will not decide issues individually, but will consider all the issues in the round to arrive at a balanced view. This means that issues that are hugely significant to one spouse – such as alleged paternity fraud – may be of less significance in the final reckoning of the court.

W and H may settle their financial remedy claims before the hearing in January. If they do not, the Judge will need to grapple with the relevance of the alleged paternity fraud when making his final order. That judgement will be awaited with interest.