Facts:
- The parties were married in 2003 and C was born a number of years later. They separated in early 2017 and thereafter W petitioned for divorce and H issued financial remedy proceedings by way of a Form A. In December 2018, H instigated a DNA test to establish C’s parentage. The test revealed that H was not C’s biological father; this result was confirmed by a second test.
- H threatened to invoke “conduct” in the financial remedy proceedings, and at the same time, issued a claim relating to the tort of deceit in the Queen’s Bench Division. Master Cook in the QBD transferred the proceedings to the Family Division on 11th April 2019. In doing so he asked:
“what this action can achieve given the remedies sought and the nature of the proceedings already underway in the Family Division. This is arguably pointless and futile litigation”.
Issues:
- The matter came before Mr Justice Cohen in the Family Division. There were two legal issues to be resolved:
- Does the tort of deceit in respect of intimate matters (in this case so-called “paternity fraud”) exist 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?
Held:
- On issue (i) Cohen J stated that because of his conclusion on the second issue he did not need to make a concluded finding on the first. However, he added that his view was that the tort of deceit can exist between husband and wife in respect of intimate matters and that W’s answer that H’s claim can always be subsumed within a financial remedies application was not sufficient. He noted that there were reported cases of the tort of deceit in relation to paternity fraud between unmarried couples, and considered that as a point of public policy, the position should be no different for married couples. Indeed, the law should be seen to encourage honesty between spouses.
- In answering issue (ii), Cohen J held that H’s claim should be struck out. He found that W’s argument that H’s chancery claim was fundamentally incompatible and amounted to an improper collateral attack on the court’s jurisdiction to order financial provision under s23 of the Matrimonial Causes Act 1973, including with regard to the mandatory requirements of s25 of that Act, was a compelling one
- The judge stated that parliament has already legislated to provide a statutory remedy for financial provision upon the breakdown of a marriage; and that s25 of the MCA requires the court to have regard to the conduct of each of the parties, if that conduct is such that it would in the opinion of the Court be inequitable to disregard it. Bad behaviour by a party, he continued, therefore falls to be considered if, and only if, it crosses the line set out by parliament. It was clear that the continuance of these proceedings would cause considerable difficulty within the financial remedy proceedings, and added nothing legitimate to them.
- Cohen J therefore struck out the claim.
