Divorce and school fees – Will the court make my spouse pay?

One of the difficult parts of resolving financial issues in a divorce or separation is that, for most people, the lifestyle that they lead, their home and their expenditure is commensurate with the income which they have as a couple / family. Here, Lisa Brown breaks down how a financial dispute within a divorce can effect the school fees of children stuck in the middle. 

When the couple split, that same income must suddenly run two homes rather than one and it is often the case that something has to give.

That might mean a change in the standard of holidays or cars or a smaller home but what happens when it is your child’s education at stake?

For some people trying to make the maths work on a separation, a private education becomes something which is perhaps no longer affordable and / or they may feel that other family expenditure should be prioritised. If both parties agree then potentially there is no issue but very often that is not the case.

Children, on the whole, are an emotional issue when parties separate and it may feel to one party that it is of the utmost importance that a child’s education and some consistency and normality be preserved.

On the other hand, fees for day schools are likely to be in the region of £15,000 per child per year.  Boarding school will be more.  Bearing in mind children can potentially be in education for 14 years this could mean a commitment in excess of £200,000 for each child. This is significant and very often there may be more than one child to consider.

So, what is the court’s view

At the outset I should say that the fundamental question of what school a child attends is not dealt with as part of the resolution of financial claims. The court on an application about finances can only resolve the issue of who pays. That may ultimately settle the dispute if the court declines to make an order and the person who wants the children to attend private education has no other method of paying but sometimes the objection is not just about the fees but the principle too.

If there was an issue whereby one party was saying that even if it were affordable the children would be better off in state education, then this would be an issue to be determined under the Children Act 1989 in line with the child or children’s best interests.

In circumstances where the only question is fees the court test is slightly different and although the children will always be the court’s first consideration there are a number of factors to look at known as the “section 25 factors” to consider and set out below:

(a) the income, earning capacity, property and other financial resources which each of the parties to the marriage has or is likely to have in the foreseeable future;

(b) the financial needs, obligations and responsibilities which each of the parties to the marriage has or is likely to have in the foreseeable future;

(c) the standard of living enjoyed by the family before the breakdown of the marriage;

(d) the age of each party to the marriage and the duration of the marriage;

(e) any physical or mental disability of either of the parties to the marriage;

(f) the contributions which each of the parties has made or is likely in the foreseeable future to make to the welfare of the family, including any contribution by looking after the home or caring for the family;

(g) 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 (although this is not usually considered in reality in the vast majority of cases)

The primary issue with school fees is likely to be balancing income and needs to see whether it is affordable for school fees to be paid whilst also ensuring housing and other needs can be met.

Where the court feels school fees are affordable, they will make what is know as a “school fees order” obliging one or potentially both parties to pay all or a portion of the fees.  This obligation is on top of any child maintenance and any spousal maintenance payable.

Can capital be set aside to pay for fees by the court?

The short answer is no.  The court has no power to force parties to ring-fence a sum to pay for school fees.  Parties can and do agree to do this or to put funds into trust for that purpose and, indeed, one of the benefits of coming to an agreed settlement is that it can be more sophisticated than the court which can be a blunt instrument.  Legal advice should, however, be sought when considering this type of structure.

Grandparents have always paid- can the court force them to continue?

Again, the short answer is no.  The court has no power to force a third party continue to meet school fees although it is possible, they will consider the way school fees have been met historically when making any decision overall.

What will a school fees order cover?

Standard wording might often cover “reasonable invoiced extras” perhaps specifically excluding exceptional items such as trips, but it is sensible to give consideration to what the expectation is.  Are buses covered, lunches, uniform and so on?

Conclusion

There is no easy answer to this question, and it very much depends on the circumstances of the case including income / assets, how many children there are and where they are in their education.

It is important to look at the bigger picture and the outcome of your case generally.  For example, carving out a school fees fund might seem attractive because it secures your child’s future, but it might prejudice your position overall if it is the case that those fees should really be being paid from your spouses’ income and the monies set aside in the fund should be divided between you meaning you would receive more capital.

Before reaching any final financial settlement whether in relation to school fees or anything else you should always speak to an experienced family solicitor.  If you have any questions about this issue, or any other family law matter, please contact our team who would be happy to assist.

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