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Paternity fraud between husband and wife: deceit or conduct?

Paternity fraud

I’ve written here previously about the not uncommon scenario whereby a man claims to have been deceived by a mother into believing, incorrectly, that he is the father of her child. The man may then be expected to maintain the child. It seems that the scenario has a name: ‘paternity fraud’.

I’ve also written here previously about the paternity fraud case to which this post refers. Back in August, I reported a previous judgment in the case, where the question arose as to when the child should be told that his mother’s husband was not his father. I mentioned in passing that the husband had made a claim for damages in respect of the wife’s alleged deceit over the paternity of the child who, she had said, was his.

Strike out application

Less than two months later the case was back before the High Court for its latest instalment (Mr Justice Cohen, hearing the case, lamented about the ‘staggering’ cost of the litigation between the parties to date, which he estimated to be about £3 million – a final hearing of the ‘hotly contested’ financial remedy proceedings is due to take place early next year, with a time estimate of 15 to 20 days, so goodness only knows what the final costs bill will be). The latest instalment concerned an application by the wife to strike out the husband’s deceit claim.

I won’t repeat the facts of the case – they are set out briefly in my previous post. The issues for Mr Justice Cohen to decide were twofold:

  1. Does the tort of deceit in respect of intimate matters such as paternity fraud exist between husband and wife? (For the benefit of non-lawyers, a ‘tort’ is basically a wrongful act that can give rise to legal liability.)

  2. If it does exist, can it run as a separate claim 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? After all, the court dealing with the financial remedy claim can consider whether it is appropriate to take into account the conduct of the parties when deciding what order to make (and the husband had threatened to invoke conduct as an issue).

As to the first question, Mr Justice Cohen answered in the affirmative. He said that he could “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 action to deceit yet absolves from such liability a wrongdoing spouse.” It certainly seems difficult to argue otherwise…

Futile litigation

Turning to the second question, I think this was perhaps best put by Master Cook, who transferred the deceit claim to the Family Division (it had originally been issued in the Queen’s Bench Division, which deals with civil, rather than family, cases), and raised the question of “what this action can achieve given the remedies sought and the nature of the proceedings already underway in the Family Division.” “This”, he said, “is arguably pointless and futile litigation”.

And that is essentially what Mr Justice Cohen found. He agreed with the wife’s argument that the claim was an abuse of the Court’s process, or was otherwise impermissible because, in circumstances where the parties were engaged in financial remedy proceedings, the claim was fundamentally incompatible with, and amounted to an improper collateral attack on, the Court’s jurisdiction under those proceedings. The continuance of the deceit proceedings would cause considerable difficulty within the financial remedy proceedings and, in his judgement, added nothing legitimate to them – the divorce court had the ability to consider the issue of the wife’s conduct.

Accordingly, the deceit claim was struck out.

Get in touch 

If you would like any advice on fertility law, please do contact our Client Care Team to speak to one of our specialist fertility lawyers here. 

You can read the full judgment here.

John Bolch often wonders how he ever became a family lawyer. He no longer practises, but has instead earned a reputation as one of the UK's best-known family law bloggers, with his content now supporting our divorce lawyers and child custody lawyers

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