We had another interesting case report recently.
The husband and wife got married in 2003, and a child ‘C’ was born several years later. The husband and wife separated in 2017. Divorce proceedings and financial proceedings were started. In 2018, C was subject to a DNA test. That test revealed that H was not C’s biological father. A second test confirmed the result. Oh dear.
The husband then issued a claim for damages (financial compensation) in a claim in the tort of deceit. His claim was issued in the Queen’s Bench Division on 8th March 2019. In his claim, H set out the many representations that he says that W made to him that C was his child when (as he alleges) she knew or suspected that in fact he was not C’s father.
H said he suffered financial loss and damage of:
i) “The difference between any financial provision payable by the claimant to the defendant in these divorce proceedings from [the date they were commenced] compared with any financial provision payable by the claimant to the defendant in divorce proceedings which would have been commenced [at the time of C’s birth] by the claimant”;
ii) “All sums paid by the claimant in respect of the education and upbringing of C from his birth to date”;
iii) “(a) All sums paid by the claimant to the defendant in respect of her living expenses, and (b) the value of all gifts given by the claimant to the defendant [from the discovery of the pregnancy until the present divorce proceedings commenced]”.
H decided, after thinking about it for a bit, that he would like to continue to be the psychological father for C and so he dropped the claim at paragraph (ii) for all sums for upbringing and education since birth.
Questions for the court
The court had to decide:
- Does the tort of deceit in respect of intimate matters (in this case so-called “paternity fraud”) exist between husband and wife?
In other words, could H make a claim at all. Prior to 1962, actions in tort between husband and wife were not permitted. The judge said:
Actions for the tort of deceit arise but rarely and in particular paternity fraud cases are few and far between. Indeed, the first reported action was not until 2000 and arose between two former unmarried cohabitees. The researches of counsel have revealed there has never been reported such a claim in the High Court between husband and wife
- If it does exist, can it run as a separate cause of action in parallel with financial remedy proceedings or is it an abuse of the court’s process and/or otherwise likely to obstruct the just disposal of those proceedings? – Remember, there were divorce proceedings and financial proceedings ongoing in the Family Court but the court hearing this application was the Civil Court, which is different.
What was the outcome?
The W’s position was that H has no claim because
The law will not recognise or allow actions for deceit between married couples where the representation alleged is as to the paternity of the child of the family…
The judge disagreed saying:
I can see no logical reason why the law should encourage honesty between unmarried couples so as to create an obligation which if breached opens the wrongdoer to an action to deceit yet absolves from such liability a wrongdoing spouse. It seems to me contrary to public policy that the law should be so interpreted
In other words, to say that there would be a claim if H and W were not married but there is no claim because they are married is unfair. So, H does have the right to claim. But what about the damages/money claim?
The husband did not fare so well on this point. In essence, the judge said that Parliament had created a statutory framework for sorting out financial issues between husband and wife (the Matrimonial Causes Act 1973) and that was the right place for the court to balance all the factors of the conduct of the wife, the value of gifts given to the wife, needs of C and the financial needs of both. I think there was also the practical element not only of working out how to assign a financial value to what the husband was claiming (which the judge spoke about) but also the eye-wateringly high legal costs incurred by them both – with a further trial to last 15 to 20 days. Not much change out of £3 million for legal fees, commented the judge. Yoiks.
And what of C? They did not and do not know that the person they think is dad is not their biological dad and the man thought to be the biological dad denies that it could be him. Troubled times ahead for C………