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

Posted on 6th July 202224th January 2023 by McAlister Family Law

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;

(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.

The call for fewer Fact-Finding Hearings

Posted on 23rd May 2022 by McAlister Family Law

The call for fewer Fact-Finding Hearings

In response to recent news, Associate Melissa Jones looks at the comments made by the President of the Family Division, Sir Andrew McFarlane at Resolution’s annual conference in Birmingham.

Sir Andrew McFarlane looked at the “default position” in cases where domestic abuse allegations are made and the need to have a fact-finding hearing. His comments were “There was an urban myth among some judges that the Court of Appeal in HN said there needed to be more fact-finding. That needed to be clarified.”

The court must at all stages of the proceedings, and specifically at the FHDRA, consider whether domestic violence is raised as an issue, either by the parties or Cafcass (Child and Family Court Advisory and Support Service) or otherwise. The Court will decide whether a fact-finding hearing is necessary by reference to the revised Practice Direction 12J Child Arrangements & Contact Order: Domestic Violence and Harm, which sets out what the Family Court should do in any case in which it is alleged or admitted, or there is other reason to believe, that the child or a party has experienced domestic violence or abuse perpetrated by another party or that there is a risk of such violence

or abuse.

If a Finding of Fact Hearing is required, then this is distinct and separate from other hearings. It can be a lengthy process and on average can last anywhere between 1-3 days. In some of the most serious cases of alleged domestic abuse it can last well over two weeks.

Such hearings, often seen as “mini-trials” can be financially taxing not to mention emotionally difficult for the parties involved. It is not an easy task, and a lot of time and preparation is needed coupled with the potential of such hearing causing further damage to the already fractious relationships of the parties.

There is a fine line to be drawn but care should be taken when pursuing the need for a Finding of Fact hearing and the underlying message it that it must be “necessary”. The court has a significant workload as it is, and it is only right that the court prioritises cases that Sir Andrew McFarlane refers to as those that “really do need to be heard”.

If you are affected by any of the issues raised here, please get in touch today. We are here to help you.

Court and contact with Children – What is the process?

Posted on 19th May 202219th May 2022 by McAlister Family Law

Court and contact with children – What is the process?

Are you feeling like you are on a constant contact rollercoaster, trying to agree arrangements with the other parent or carer, and knots of worry tangle you up each week? Here, Nicola Bradley breaks down the process of applying for a Child Arrangements Order and what a successful application can mean for those struggling with contact.

Does the following apply to you? Are you asking yourself if you will get to see your child? Perhaps your message is going to be left on “read” with no response. Are you always getting messages late so that last minute plans have to be made, or feeling like you are an on call babysitter and there is no structure in place. Maybe you have attended or proposed mediation, as well as other forms of Alternative Dispute Resolution (ADR) but this has not been successful.

What can you do in this situation? It might feel like whatever you have tried before has only been met with more complications when trying to organise contact. But when you have tried everything else and nothing has worked, there may only be one option left; Court.

Should I apply to the Court?

It is common for parents to start giving themselves a hard time when court feels like your only option. But it is important to remember that being a parent or carer, although a great privilege, is incredibly challenging, and court intervention can sometimes be required to allow for a firm arrangement to be put into place. Most people see court as a last resort, but it is a real option in resolving contact issues, putting the welfare of the child at the forefront and making sure that the right outcome is found.

So what happens next?

An application for a Child Arrangements Order (CAO) is made by completing the court’s C100 form. A CAO can define who the children live with; who the children spend time with, including how often and whether that contact is supervised or not; and any indirect contact such as letters or facetime calls, including their frequency.

You can also use the C100 to apply for a Specific Issue Order (SIO) if you would like the court to decide on a particular issue, such as where the child should go to school or what surname they should have. It is also used to apply for Prohibited Steps Orders (PSO) which prevent the other parent from performing a certain action, such as removing the child from the jurisdiction.

Again, the welfare of the child is paramount concern for the court and the court has to have regard to the Welfare Checklist contained in s1(3) Children Act 1989.

the Children and Family Court Advisory and Support Service (“Cafcass”) may also be involved in your case. Cafcass are an independent body appointed by the court to make recommendations based on what is safe and, in the best interest of the child(ren). After an application is issued, Cafcass will usually speak to the parties involved and prepare an initial safeguarding letter in advance of the First Hearing Dispute Resolution Appointment (FHDRA).

In some cases, particularly where the issues are narrow, it is possible that matters could be resolved at the FHDRA. More often, the court will use the FHDRA as an opportunity to listen to the parties’ positions and make directions for further evidence to be obtained, and/or for Cafcass to conduct a more detailed safeguarding analysis known as a Section 7 Report, in advance of a Dispute Resolution Appointment (DRA).

The court typically lists DRAs for 60-90 minutes to try to enable agreement/a final order, if possible. If not, the matter will be listed for a contested final hearing before the court can determine the final child arrangements.

Whether or not the matter proceeds through to a final hearing, the court process is not a short one and generally takes between 6-12 months to complete, sometimes longer depending on the complexity of the case.

If you are experiencing difficulties agreeing arrangements for your children, please contact us as soon as possible. Our experienced family law solicitors will help you in trying to achieve the best possible outcome.