FRB v DCA [2019] EWHC 2816 (Fam)

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 11^th 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:

1. Does the tort of deceit in respect of intimate
   matters (in this case so-called "paternity fraud") exist between
   husband and wife?

1. 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.