Most people are familiar with the concept of negligence. Negligence is known in English law as a tort – a civil wrong that causes the claimant to suffer loss or harm. There are many other torts, including trespass or defamation. However, one of the lesser known torts is that of deceit. This is where a person intentionally and knowingly deceives the claimant into taking action or taking steps that causes damage to the claimant.
In the family law context, the tort of deceit has appeared in so called ‘paternity fraud’ claims between unmarried couples. The typical scenario is that the father of the child has paid child maintenance for a child that they believe to be their biological offspring. After paying child maintenance for several years, DNA testing subsequently proves that the father is not the biological father at all. If the father can prove that the mother of the child deliberately deceived him into believing that he was the biological father of the child, and that he paid child maintenance as a result of that deceit, the tort is made out. In those circumstances, the father would be entitled to damages from the mother.
However, previous decisions of the court appeared to have established an idea that the tort of deceit did not exist between married couples. This was explained back in 2001 as follows:
“…it is not discriminatory for the procedures and remedies available to unmarried couples within this court to differ from those available to married couples by reason of the remedies available to the parties in matrimonial proceedings.”
Fast-forward to 2019 and the High Court was faced with the issue of paternity fraud in FRB v DCA. In this case, the parties were married in 2003 and their child, C, was born several years later. The parties separated in 2017. In 2018, C was subject to a DNA test and this confirmed that the husband was not the father of C.
The husband threatened to invoke “conduct” in the financial proceedings between the parties and also made a claim in the tort of deceit. He submitted that through the wife’s deceit and misrepresentations he had suffered loss and damage. The court dealing with the husband’s claim of deceit was decidedly unimpressed, describing it as, “pointless and futile litigation.”
The husband’s claim of deceit was considered further by Mr Justice Cohen in the Family Division of the High Court. After careful deliberation, he came to the conclusion that the tort of deceit could exist between married couples:
“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.”
However, Mr Justice Cohen refused to allow the claim of deceit to proceed any further. He took the view that the claim posed an ‘improper attack’ on the ability of the court to resolve financial matters between the parties within matrimonial proceedings. The wife’s conduct would be fully considered within the matrimonial proceedings and it would be disproportionate for the court to consider the issue beyond that sphere. In reaching this decision the Judge was no doubt influenced by the fact that the parties had already incurred astronomical legal costs, estimated at around £3m in total.
Whether the wife’s ‘paternity fraud’ will be seen as conduct that the court cannot ignore within the matrimonial proceedings remains to be seen. The threshold for ‘conduct cases’ remains a high one, so the husband in FRB v DCA may end up disappointed.
If you are unsure over where you stand when it comes to any of the above issues, do get in touch with Stuart on 01254 778148, or alternatively complete our Contact Us form and one of our expert advisors will be in touch.