Divorce, money and “paternity fraud”

5th November 2019 Family Law

Paternity disputes are not uncommon. They often occur between unmarried couples where a father seeks to avoid financial liability for a child he does not believe to be his. Disputes can generally be resolved swiftly and decisively by obtaining DNA samples and sending them to the lab for analysis. A good lab with robust policies can confirm paternity with a very high degree of accuracy and the issue of paternity usually ends there.

Studies differ wildly on the incidence of so-called misattributed paternity among married couples. It is basically impossible to obtain DNA evidence from a truly random sample of the population in order to come up with a reliable figure. Research based on self-reporting about sexual behaviour within relationships also has huge limitations. Quoting a percentage here would be irresponsible so I’m not going to.

Let’s agree that it does happen sometimes. We can say that it is extremely rare is for the issue to arise in a reported case. However, this is just what happened in the recently published case of FRB v DCA [2019] EWHC 2816 in which a husband attempted to sue his wife for so-called “paternity fraud”.

The case

The unidentified husband and wife married in 2003 and had a child (known as C) a few years later. Since separating in 2017, there have been “hotly contested” financial proceedings associated with their divorce which are due for a 15-20 day final hearing at a later date. It seems to be a complex and acrimonious case in which combined costs appeared to be close to £3m, and counting.

In 2018, two DNA paternity tests showed that the husband was not the father of C. He took the unusual step of starting separate proceedings against his wife, relying on the tort of deceit, as well as threatening to raise the issue as “conduct” within the financial remedy proceedings. He essentially sued his wife for (he said) deliberately misleading him about C’s paternity.

What is the tort of deceit?

This is an unusual form of legal action. “Tort” describes certain situations where a person has suffered some kind of wrong that gives them a right to take civil (as opposed to criminal) legal action. Suing someone for personal injury damages after a road accident they caused is an example of the tort of negligence. The tort of deceit arises where someone has knowingly made a false representation which another person has relied upon and suffered loss as a result.

Does the tort of deceit apply to so-called “paternity fraud”?

There have been a number of cases between unmarried couples in which a man has alleged that a female partner has fraudulently deceived him as to her child’s paternity. The courts have found that the tort of deceit does apply here though whether damages should actually be awarded is more difficult to establish, though possible. In this case, the judge found that the tort of deceit can arise between a husband and wife in respect of “intimate matters” and saw no reason why it should apply between unmarried couples and not married ones.

The court did not hear evidence on whether the wife in fact knowingly made false representations about C’s paternity. Her advisors agreed that if this could be proven – something she denies – the tort would have been committed. However, it is one thing to find that a tort has been committed but another thing to rule that the wronged party should receive damages.

The husband argued that he should be able to win damages calculated on the basis of (1) the difference between the divorce settlement the wife would receive now compared with what she would have received if they had divorced at the time of C’s birth; and (2) sums paid by the husband to the wife in respect of living expenses and the value of gifts from the discovery of the pregnancy until the commencement of divorce proceedings. A claim for damages based on sums paid towards C’s upbringing and education was dropped following the husband’s decision to continue as C’s psychological father.

The court ruled that even if the husband could show that of was a victim of the tort of deceit, he should not be allowed to receive damages. He struck out the husband’s claim because he found that it was an abuse of process. This is because, within the matrimonial proceedings, the court was already bound to consider any “conduct” (basically, behaviour so bad it cannot be ignored) when deciding what financial order to put in place. To allow the husband to sue the wife separately would undermine the court’s jurisdiction to deal with the financial consequences of the divorce so the judge put a stop to the husband’s case in tort.

What happens when a child of a married couple is found not to be biologically related to the father?

Like so much in family law, the outcome of a particular case will depend on a whole host of factors designed to ensure a fair, personalised result. A man who is not biologically related to a child cannot be pursued for child maintenance by the Child Maintenance Service (the successor to the Child Support Agency), unless he is an adoptive father or treated as a child’s legal parent following fertility treatment or surrogacy. Nevertheless, the court can award financial provision for the benefit of a child upon divorce where they have been treated as a “child of the family”, regardless of biology.

If a husband is not the father of a child of the family, the court has to take into account the extent to which he assumed financial responsibility, whether he did so knowing that the child was not his and whether anyone else is financially liable for the child. The court therefore has flexibility to consider child maintenance payments made by a third party such as a biological parent.

It would be surprising if a court would allow a child to be financially disadvantaged because of a revelation about their paternity. If the outcome of the financial proceedings in FRB v DCA is reported – and it may well not be – it will be fascinating to see whether the court does find that the wife misled the husband and whether her behaviour in so doing was so bad as to actually change her financial award. One thing we do know now: there is little point starting a separate case against a spouse for alleged paternity fraud.

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Laurie Kershaw is a Solicitor located in Manchesterin our Family department

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