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Divorcee disputes settlement after paternity revelation
Tue 27 Apr 2010
A divorcee hopes to overturn his divorce settlement after discovering he is not the biological father of his daughter.
The man found out his 17-year-old child was not biologically his just over a year after his divorce was finalised when two DNA paternity tests he did came back negative.
He is now attempting to overturn the agreement he made with his ex-wife, in which he willingly gave up his 40 per cent share of the family home, equating to £470,000.
If he is successful, he will set a new precedent in divorce law.
Likening the discovery that his daughter is not his own to defrauding a company, he plans to dispute the settlement.
Speaking to The Times, he told of how he believes this is what his ex-wife has done, allowing her to obtain the family home by deceit.
However, in order to reopen the case he needs £25,000, money he no longer has as a result of giving up his share of the house.
Carol Ellinas, a partner at Winckworth Sherwood Solicitors, commented: "Firstly addressing the issue of funding his legal costs. There are a select number of companies and banks willing to lend a potential litigant funds.
"A loan pot is usually made available for draw down over the course of the proceedings. Lenders often but not always require some form of security.
"The lenders also rely on the judgement of the litigant's legal team as regards the merits of the claim.
"The solicitors in the family law team at Winckworth Sherwood always discuss the potential costs of litigation in great depth with the client at the outset.
"Turning to the case in question. Biological parentage has received a lot of media attention especially now that DNA tests can prove with 100 per cent certainty that a child is not your biological child.
"The converse is not 100 per cent guaranteed, i.e. that a child is definitely your biological child but this is not the issue in this case.
"As a family law solicitor, when faced with a client who is considering questioning his parentage I spend time discussing whether they really want to know one way or the other and often recommend some counselling before and indeed after the test.
"For centuries fathers have questioned whether a child they have raised is their biological child, but until now the definitive scientific test has not been available, now that the door cannot be closed and the potential knowledge unlearnt.
"Ignoring the legal consequences for now, what impact will this knowledge have on the child, the children being the innocent parties in any separation?
"When dealing with a divorce the Courts and indeed the lawyers must primarily consider the children who are already experiencing an enormous change in their lives.
"Is it appropriate to also challenge parentage at this stage, how will the child handle this knowledge on top of what is happening to them? This will be foremost in the courts mind when dealing with a reopening of the divorce settlement.
"The fact that the father has treated the child as a child of the family since birth is also critical and if at the time of the divorce the parties and the courts considered that the settlement was appropriate for the child/children then should the child be further disrupted as a consequence of this new information?
"The other side to this is if the wife knew from the outset that the child was not, or possibly was not her husband's should she be able to 'get away with' the deception and hold him to the agreement he had been prepared to stand by when he thought his daughter was his biological daughter?
"The courts are able to consider a party's conduct in exceptional circumstances and even reopen a settlement when there has been a significant intervening event and this case may be such a circumstance. If after considering all the facts and circumstances the court were to decide that the husband had been unfairly treated and if all the relevant information had been available to him at the time of the divorce then a different settlement would have been appropriate then what can the court do to rectify the situation without causing further distress to the child?
"In my opinion the court could order that the wife no longer own the property outright and that when the child is an adult then the wife has to sell the property and release the husband's share to him.
"That way the child remains secure until she is probably going to leave home to go to university or college in any event. However without being availed of all the facts it is impossible to predict."
