Family analysis: In deciding whether the tort of deceit should apply to married couples, the court concluded that a deceit claim in relation to paternity should be dealt with within the existing financial remedy proceedings rather than as a separate claim. Sarah Higgins, partner and head of the family group at Charles Russell Speechlys LLP, discusses this decision.


What are the practical implications of this case?

FRB v DCA is a recent decision of Cohen J that dealt with an application by the wife to strike out a claim as to the tort of deceit made by the husband in the Queen's Bench Division.

One of the issues was whether the tort of deceit can exist between husband and wife in respect of intimate matters (in this case in relation to the paternity of a child). The judge decided that it could, although he also said that he did not need to conclude this issue because of his conclusion on the second issue. The second main issue was whether the husband could proceed with this claim where there were also ongoing financial remedy proceedings in which, if appropriate, the court could take into account the wife's conduct when assessing the financial award.

The court found that as there was a statutory scheme for dealing with the allocation of the parties' resources, which is set out in the Matrimonial Causes Act 1973 (MCA 1973), accordingly, the financial remedy proceedings, in which thecourt has an obligation to consider the factors in MCA 1973, s 25, would be the right forum to deal with the issue rather than proceedings based on the common law tort of deceit. The court therefore accepted the wife's argument that the claim in tort was incompatible with the court's jurisdiction in financial remedy proceedings. However, in an appropriate (but rare) case, it could be possible for a claim to be made between husband and wife for a claim for damages in tort where financial remedy proceedings were not available (the example given by the judge being where a husband remarried before issuing a financial remedy claim and then discovered that he was the victim of paternity fraud, and was in the weaker financial position, which would be an unusual set of circumstances).

What was the background?

The parties had a child, C. They married in 2003 and separated in 2017. The husband found out after DNA testing that he was not the father of C. There were separate Children Act 1989 proceedings which dealt with the issue of what and when C should be told about his paternity and the identity of the biological father. The husband issued proceedings in the Queen's Bench Division claiming that the wife had made many representations to him that C was his child when he alleged that she knew or suspected that he was not.

The proceedings were transferred to the Family Division. The husband originally claimed:

• the difference between the financial provision in the financial remedy proceedings and the financial provision that would have been payable in proceedings which would have been commenced much earlier, ie at the time of C's birth

• all sums he had paid for C's upbringing and education (abandoned upon the husband's decision that he wished to continue to be C's psychological father), and

• all sums payable to the wife for her living expenses, and gifts to her from the time of the pregnancy to the date of the divorce proceedings

What did the court decide?

The court accepted that there was clear authority that the tort of deceit applies to unmarried couples. The judge decided that it should also apply to married couples, in that it would be contrary to public policy to encourage honesty between unmarried couples and not married couples. Accordingly, the fact that the parties were married did not of itself prevent the husband from claiming, but in most cases there will be financial remedy proceedings in which the conduct could be taken into account and which would take precedence.

There were in any event various practical difficulties with the husband's claim. He wanted the court to assess what the wife would have received if there had been a divorce at the time of C's birth, and to assess what it would be today, and then damages in the sum of the difference. There was no evidence of the assets at the time of C's birth in order to carry out that assessment. In addition, he claimed that the sums spent on the wife's living expenses and gifts to her should be added on to the damages. The judge pointed out the difficulties of such an exercise, for example not being able to work out how much of the household expenditure was properly attributable to the wife. The husband had to give credit for any benefit he had received from the tort, but it was not sufficient for him to have taken on financial responsibility for C. He had not given credit for the fact that he had a much-loved child.

The court in the financial remedy proceedings could take into account as conduct the alleged deceit as part of the discretionary exercise, if it was felt to be fair. Accordingly, the husband was not without a remedy. The time estimate of the hearing was extended by five days to encompass the arguments in the deceit claim if still alive. The judge concluded that the costs of further litigation of the tort claim would be disproportionate to any gain that the husband might achieve (he estimated the current costs to be £3m). Accordingly, the judge concluded that the claim in deceit should not survive.

It remains to be seen whether the judge at the final hearing of the financial remedy claim will regard the wife's conduct (if proved — this hearing took place on the basis that that the husband could prove that there were fraudulent misrepresentations, which the wife denied) as sufficient to be conduct which under MCA 1973, s 25(2)(g) it would be 'inequitable to disregard'— and if so, what the financial consequences should be.

This article was first published on Lexis®PSL Family on 12 November 2019.