Claim In Tort Incompatible With Courts Jurisdiction In Financial Remedy Proceedings (FRB v DCA)

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.

FRB v DCA

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...