Divorce, bad behaviour, deceit and compensatory claims in financial remedy proceedings

In the recently reported case of FRB v DCA, the Husband brought a claim against the Wife for the tort of deceit, accusing her of “paternity fraud”.

The parties separated in 2017 and a DNA test revealed that their child was not the Husband’s biological son. He immediately threatened to invoke conduct in the course of financial remedies proceedings and brought the deceit claim, arguing that he had suffered loss and damage.

His particulars of claim were subsequently amended.  At issue before the court were whether the tort of deceit in respect of intimate matters, namely the paternity fraud, exist between husband and wife and if so, 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 or otherwise likely to obstruct the just disposal of those proceedings? 

Mister Justice Cohen summarised the law on the tort of deceit and considered the case law, concluding that the tort of deceit can indeed exist between married couples. There is also clear authority that paternity fraud applies to unmarried couples.

However, given the financial remedy proceedings and the provisions of s25 of the Matrimonial Causes Act, he found the Husband’s claim to be fundamentally incompatible and an improper collateral attack on the court’s jurisdiction – s25(2)(g) of the Act 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 therefore falls to be considered if, and only if, it crosses the line set by Parliament. 


For more information about financial remedy proceeding or divorce in general, why not contact one of Alexander JLO’s expert Divorce lawyers and see what we can do for you?

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