How would Stallone’s alleged misconduct sit with the Courts of England and Wales?

Posted on 1st September 202224th January 2023 by McAlister Family Law

How would Stallone’s alleged misconduct sit with the Courts of England and Wales?

Sylvester Stallone hit the headlines once again recently, after news broke that his wife of some 25 years, Jennifer Flavin, had filed for divorce. In his latest blog post, George Wilson takes a closer look at how Stallone’s alleged misconduct would sit with the Courts of England and Wales.

The divorce suit was filed just days before a video emerged of Stallone, now 76 years old, covering up a tattoo of Flavin on his bicep with a picture of Butkus, the bull mastiff from the Rocky film franchise. Although Stallone was not shy about disclosing the video to the world at large, it has been alleged by Flavin that he hasn’t quite disclosed things he should have and has hidden marital assets within the divorce proceedings. Flavin’s legal team further state that the Stallone has:

“engaged in the intentional dissipation, depletion and/or waste of marital assets which has had an adverse economic impact on the marital estate”

Naturally, Stallone’s solicitors have denied any sort of misconduct.

How would Stallone’s alleged misconduct sit with the Courts of England and Wales?

In the jurisdiction of England and Wales, all parties to financial remedy proceedings within divorce owe a duty of full and frank financial disclosure to the Court and, in turn, their spouse. Essentially, parties within the proceedings must disclose all of the available information about their assets and income, by way of detailed financial disclosure, usually on the standard document used for such disclosure, Form E. Such disclosure will include evidence of the value of properties parties have an interest in, copies of bank statements linked to bank accounts in their name, evidence of their income and income needs, evidence of other assets such as investments and ISAs, valuable chattels such as artwork, jewellery, and watches, and motor vehicles.

Parties will also need to provide evidence of dividend counterfoils, company accounts, tax returns, and any liabilities they might have against their name. This list is by no means exhaustive, and parties are often shocked at how much detail they are required to provide within their financial disclosure. A blank Form E can be found at this link for ease of reference.

If parties to a divorce refuse, or fail to provide the required disclosure, the consequences (and remedies available to the Court and their spouse) are very serious. The court is likely to draw “adverse inferences” about parties who fail to provide the required disclosure. Essentially, this means that the Court can, and will, assume a spouse has something to hide and can make robust assumptions about the trust value of their assets and level of their income. Furthermore, if the divorce (and financial remedy proceedings) has concluded and one spouse believes that their ex-spouse had hidden assets, it may be possible to reopen the case. The court can reopen any case if it finds there has been deliberate and fraudulent non-disclosure of assets by one spouse.

Such assets, now visible and disclosed, will come under scrutiny, and the court can decide as to how the same should be divided. Perhaps the worst outcome of being found ‘guilty’ of non-disclosure, is the Court finding that a spouse has been in contempt of court and if the contempt has been deliberate, then the guilty spouse can be fined or even have a custodial sentence forced upon them. It is therefore of paramount important to work with a solicitor to ensure that the disclosure you provide is full and frank.

Stallone has also been accused of dissipating marital assets. Dissipation of assets occurs when one spouse has used, given away or otherwise transferred, converted, wasted, mismanaged, or adversely affected assets that would have been subject to division and distribution. Dissipation of assets may be in the form of the quick sale of assets such as property, stocks and shares, or other chattels such as artwork. Dissipation can also be more subtle and can be in the form of significant ‘gifts’ to friends and family, substantial cash withdrawals, gambling, or other unusual and possible reckless purchases. The court will see such dissipation of assets as an act of litigation misconduct.

Under the Matrimonial Causes Act 1973, it is possible for one spouse to apply to freeze certain assets belonging to the other, to reduce the risk that they are dissipated. In such circumstances, it is essential to act quickly, with the assistance of solicitor, should you suspect that your spouse intends to dissipate assets, as it is much more difficult to deal with the assets once they have been dissipated.

Can my children go on holiday with their grandparents if my ex does not consent?

Posted on 26th August 202224th January 2023 by McAlister Family Law

Can my children go on holiday with their grandparents if my ex does not consent?

Taking children on holiday can often be more challenging between separated parents, but can grandparents take their grandchildren on holiday, and how easy is it in a separated family? Here, Michael Compston looks at court orders, parental responsibility, and offers advice to grandparents looking to plan a holiday.

Firstly, who can take children on holiday? This blog assumes that you and your ex- have separated and no longer live together, but that there is no court order in place; if you do have a court order, you should refer to the warning notices within that order.

Only those individuals with parental responsibility have the capacity to make decisions on who may take children out of the country on foreign holidays. Parents acquire parental responsibility most typically at birth; the mother will acquire it by virtue of being the child’s mother, and the Father will acquire parental responsibility if he is married to the Mother at the time the child’s birth or he is named on the child’s birth certificate as the Father. Similar provisions apply for same-sex couples.

With no court order in place, permission of those with parental responsibility is required before taking children on a foreign holiday. This is the case regardless of who the child lives with. Consent should not be unreasonably withheld – why would a parent not want their child to experience a foreign holiday – but if the holiday is at risk of putting a child in danger, or there are concerns about the children not returning, then consent may be withheld. Consent is often withheld because the ex- is worried about their routine time with the child being interrupted. It may be helpful to consider how any lost time could be made up, if consent is being withheld, as a means to broker an agreement.

Grandparents typically don’t have parental responsibility for children – there are exceptions to this, of course, but we are looking at the general position here. Those with parental responsibility are free to delegate childcare to who they consider appropriate to provide such childcare. We see this when parents work longer hours than children are at school or nursery and grandma or grandad need to collect the children and provide childcare for a couple of hours. We don’t often think about the action of delegating that responsibility as it is simply what many working families do as part and parcel of 21^st century life; everybody pitches in for the childcare, especially when both parents work full-time, or close to full-time jobs.

It is advisable for grandparents to plan their holidays well in advance and they must ensure that they have permission of all individuals with parental responsibility. Written consent is not strictly a legal requirement but it would be a very good idea to have something from everyone who has parental responsibility, in writing, that can be shown to any customs officials querying the legal right to take the children on holiday. This is particularly important when the children have a different surname to the grandparents.

If consent is withheld from any individual with parental responsibility, then the grandparents can apply to court for a Specific Issue Order. They will need permission to make such an application, granted by the court, but getting permission to make the application is usually a formality – this is not the same as permission being given to take the children on holiday. The court will list the matter for a Final Hearing where the parties – grandparents and those with parental responsibility – will give evidence in front of a Judge and have the opportunity to cross-examine (ask questions) of the other parties before the Judge makes a final decision.

The Judge will consider first and foremost what is in the child’s best interests. Judges will encourage the parties to come to an agreement but, if no agreement is reached, then they will decide what is in the child’s best interests and make an order accordingly.

Separated parents and international travel during Covid-19 restrictions

Posted on 18th August 202224th January 2023 by McAlister Family Law

Separated parents and international travel during Covid-19 restrictions

As of August 2022, the Covid-19 pandemic continues to affect international travel, for most, this can mean a last-minute rush to the airport to avoid isolation, but for separated parents the added stress of acquiring consent to travel with their child from the other parent can make holidays even more challenging. Here, Heather Lucy explains how the ongoing Covid-19 pandemic can play a role in organising a holiday between separated parents.

With holiday season in full swing, many parents want to take the opportunity to take their children on holiday. For most families this tends not to be much of an issue, but for families with separated parents there are a few more things to consider. Firstly, if one parent wants to take a child abroad, whether that be permanently or temporarily, the other parent with parental responsibility will need to give consent. However, anyone with the benefit of a Child Arrangements Order, stating that their child is to ‘live with’ them, is legally allowed to remove the child from England and Wales for a period of less than 28 days without the consent of the other parent, even though they have parental responsibility.

What about Covid-19?

As of August 2022, providing you and your child are fully vaccinated, there are 172 countries open to you worldwide, 28 countries that require you to test before you travel, 3 countries that require you to quarantine upon arrival, and only 24 countries fully closed. On the other hand, if either you or your child are unvaccinated or haven’t received all of your vaccinations, only 87 countries are open to you, 71 require you to test before you travel, 19 countries require you to quarantine upon arrival, and 50 countries are fully closed. However, the status of each of these countries so called ‘openness’ can change at any given point.

It is understandable then why any parent may have some reservations around their child travelling abroad with their ex-partner, not least because of the fear that once in the destination country, your ex-partner and child might face a period of self-isolation upon their arrival. Again, changes in the status of ‘openness’ can happen at any time and parents can be caught out with an unexpectedly long stay and issues with accommodation. On top of this, there is the ever-present worry around the risk of the child either contracting Covid-19 or transferring it.

Written consent.

If you do wish to travel abroad with your child, the first step is to seek written consent from the other parent before travelling. If this is something which may prove difficult, try to have an open discussion with the other parent; understand and alleviate any fears that they may have by confirming:

Travel dates and times
Where you will be staying
Explain how you will keep the child safe throughout the holiday
Explain the rules around quarantine and testing if you are traveling to a country where this is required

Compromise and flexibility is key, but what happens if you cannot come to an agreement or if your ex-partner gives consent but then changes their mind?

You can make an application to the court for a Specific Issue Order stating that you can remove the child from the country and the court will make the final decision. On the other hand, if you are the partner who is not traveling and you haven’t given consent and are worried that your ex-partner will travel with your child regardless, you can apply to the court for a Prohibited Steps Order to prevent them from traveling. If you are in this situation, you should seek legal advice urgently as this may also be considered child abduction.

Will the court hear this matter in time?

The court is dealing with a significant amount of cases and there is no guarantee that it will be able to deal with an application such as this as quickly as might be necessary. Our advice is to deal with this matter before it becomes an urgent one. There are alternatives to making a court application, such as engaging your solicitor and seeing if the matter can be negotiated or referring to mediation to see if an arrangement can be reached.

If you are affected by any of the issues outlined here, please get in touch with our specialist teams today.

Can I stop my children going on holiday with my ex’s new partner?

Posted on 11th August 202224th January 2023 by McAlister Family Law

Can I stop my children going on holiday with my ex’s new partner?

With the school holidays here and plans being made for families to go abroad or on holiday in the UK, one of the most frequently asked questions is where a parent stands with their children going on holiday with their ex’s new partner. Here Melissa Jones explains the factors at play when the Court decides whether or not a parent can prevent their children from going on holiday with their ex’s new partner.

Perhaps you have not yet met your ex’s new partner and therefore know little about them or maybe the two of you didn’t get off on the best foot.

Before you make any decisions, with family law cases concerning children, it is always best to start from their point of view and think reasonably as to why you might object to the partner tagging along. You might be worried that the new partner has only just come on the scene and is therefore unfamiliar with your children. This is understandable but is unlikely to convince a court that this holiday should not happen if the partner was to attend.

But why should I miss out on time with my children and the new partner gets to spend time with them?

This is understandable, but the court is becoming more familiar with “separated families” or “blended families”. The court will appreciate that parents move on after separation and each should be afforded the opportunity to go on holiday as a family. The focus in this scenario is to ensure you arrange your own holiday(s) with the children so you can enjoy quality time with them, one on one.

It may be that in the future, you may also want to go on holiday with the children and your new partner and you would ideally want this to be fully supported by your children’s other parents.

Can I get a court order to stop my ex taking the children on holiday with their partner?

If there is an Order in place, usually a Child Arrangements Order (formerly a Residence Order) then a child can be taken abroad for up to a month without needing the written consent of the other parent.

Parental Responsibility

If there is not a court order in place, what first needs to be considered is whether you have parental responsibility. If both parents share parental responsibility, then what is often overlooked is that your partner will need your written consent in order to take the child out of the United Kingdom (Section 13 (2) of the Children Act 1989). Failing to do so could lead to that parent committing an offence of abduction for which they can be fined, imprisoned or both.

If you object to the partner attending the holiday, you are essentially objecting to the other parent taking the children on holiday. As such, you can make an application to the court for a Prohibited Steps Order, to prohibit the other parent taking the children on the holiday.

Likewise, if the other parent believes your consent is being unreasonably withheld, then they can make an application to the court for a Specific Issuer Order, for permission to take the children on holiday in the absence of your consent.

In either scenario, the Judge will take into account the individual circumstances of each family. The Court rarely denies permission to take a child on holiday abroad where there is an existing relationship between the parent and child and the plans are reasonable in all of the circumstances. The court is unlikely to implement a restriction against the new partner attending in the absence of safeguarding concerns as it is a dispute between the two parents. Any Prohibited Steps Order or Specific Issue Order will relate to the parent either being given permission to go abroad with the children or being prohibited from taking the children on holiday, not in relation to the new partner. It would be very rare for a third party to be named in either order.

When the court denied permission it is usually in circumstances where the plans are patently not in the child’s best interests or where the Court deems the child may not be returned to the country.

The child’s best interests

If only one parent has parental responsibility, and again there are no Court orders in place, then permission is not necessarily needed to take a child abroad on holiday. That being said, and with your child’s best interests at heart, consultation should always take place with the other parent (if they are in regular contact with the child) in order to reach an agreement that is right for everyone.

Open lines of communication

What is important is communication and trying to agree any travel arrangements between you and the other parent in advance. This is not always possible, but if it can be achieved, it will avoid any applications to the court being necessary.

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

Taking a child on holiday with a different surname

Posted on 2nd August 202224th January 2023 by McAlister Family Law

Taking a child abroad with a different surname

Now that the summer holidays have begun, you may be planning for a family holiday abroad. For most families in the UK with children, planning for a holiday involves taking certain precautions to ensure that they do not encounter any issues whilst travelling. This is particularly important for those parents that will be travelling with a child that has a different surname to them. Here Weronika Husejko offers her top tips for traveling abroad with a child who has a different surname.

What is the current situation?

In recent years, it has become increasingly difficult to travel abroad as a family in these circumstances. Many countries are stricter when it comes to parents travelling with children that do not have the same surname as them. Whilst this is a welcome change which promotes the safety of children all over the world, if you are not aware of this, a trip abroad can quickly become more stressful than anticipated.

How can I prepare?

There are some documents that you can bring with you which will reduce the likelihood of you and your family being held up whilst travelling.

Your child’s birth or adoption certificate. This can verify that you are in fact the child’s parent.

Proof of your change of surname such as your marriage certificate, deed poll or decree absolute which can demonstrate the reason for the difference in surname.

Written consent from the other parent. Asking the child’s other parent to sign a written form of authority demonstrating their consent to you taking then abroad can be useful as in most circumstances it is illegal to take a child abroad without the consent of every person with parental responsibility of that child.

Existing Court Order. If your child is subject to an existing Court Order such as a Child Arrangements Order, this is another document which may verify the connection to your child.

And finally…

Make sure to do some research as the rules can vary. It is always a good idea to look into the guidelines of the specific country that you are travelling to. Most airlines should also be able to provide you with some basic advice for your trip.

If you have any questions about this issue, or any other family law matter, please contact our team who would be happy to assist.

Can a child apply for financial support in their own right?

Posted on 28th July 202224th January 2023 by McAlister Family Law

Can a child apply for financial support in their own right?

Do the family courts have jurisdiction to grant a financial order on the application of a child against their parents? The short answer is yes, but only in limited circumstances. Here Aaron Williams explains how in one particular case, a child was able to make such an application.

In the novel case of FS v RS and JS [2020] EWFC 63, ‘children’ were able to make such an application. The circumstances in that case concerned an adult ‘child’. The applicant (aged 41) was a university graduate and qualified solicitor, however, due to his mental health hadn’t worked since 2011. The applicant was at the time of his application in further education in London. The applicant’s parents historically provided him with financial assistance by letting him reside in their London property with all outgoings paid for; these circumstances changed however when the applicant’s relationship with his parents deteriorated, and their financial assistance was reduced.

The applicant applied to the court claiming that his parents had ‘nurtured his dependency’ on them financially, and that their removal of financial aid would leave him poor and destitute. His application to the court was threefold, namely under; a) Section 27 of the Matrimonial Causes Act, b) Schedule 1 of the Children Act 1989, and c) the Court’s power to protect vulnerable adults who have the mental capacity ‘to make their own decision (under its inherent jurisdiction).

The court ultimately determined that it did not have jurisdiction to make an order for financial support in the circumstances of this case; but in its determination considered the circumstances such an application could be brought by a child.

Section 27 of the Matrimonial Causes Act 1973

Section 27 of the Matrimonial Causes Act enables the court to make financial provisions where one spouse has been neglecting to maintain the other spouse or a ‘child’ of the family. In this circumstance a child of 16 or older may make an application to the court, but only where one of their parents has previously applied (against the other parent) for a periodical payments order in the child’s favour.

Schedule 1 of the Children Act 1989

Under Schedule 1 children who are over the age of 18 can make an application against their parent, provided: –

The child is, or will be going on to higher education, undergoing training for a trade, profession or vocation; or
There are special circumstances that justify the order.

The court found against the applicant on the issue of higher education, as the judge found that ‘conventional wisdom and practice would suggest that these provisions were never intended to be used and cannot be used to fund the education of a perpetual student’.

‘Special circumstances’ are not defined and are ultimately the discretion of the court but there are several cases which provide examples of what may consider ‘special’.

T v S [1994]: a physical or cognitive disability.
C v F [1998]: where a child was severely disabled and would be dependent on another person for their whole life.

In short, the courts generally consider that a parent’s financial obligation to their child ceases at 18 years of age, and that the child will usually no longer be dependant when they finish their education. It is only in one of the limited circumstances detailed above that an adult child can make an application against their parent for financial provision.

Do I still have to pay child maintenance when my child attends university?

Posted on 21st July 202224th January 2023 by McAlister Family Law

Do I still have to pay child maintenance when my child attends university?

Lots of parents don’t know what level of financial contribution they are required to make (if any) when their children start university, and it’s something that isn’t talked about often. What if one parent wants to continue financial support and the other doesn’t? Here, Frances Bentley explains the requirements for separated parents to pay maintenance throughout their child’s academic career.

Child maintenance (as dealt with by the Child Maintenance Service), is payable until a child is age 16 or up to age 20 if they are in full time secondary education (college education). So, if a child finishes their A-levels/college education at age 18, the paying parent only needs to pay child maintenance until they finish, because university education does not fall under the umbrella of secondary education. So, there is no requirement to continue paying child maintenance beyond that time and when a child goes to university.

Lots of parents will decide to provide their children with a level of voluntary financial support whilst at university, but if one parents states they simply are not going to, the other parent may query whether there is a legal route for them to force contributions to their child’s ongoing educational costs.

If you are in this situation what should you do?

This is something that should be thought about by parents early on because the court’s powers are more limited once the age of 18 is reached. Before considering any potential legal route, parents should keep lines of communication open, to discuss their concerns and the level of financial contribution that might be required.

There will need to be an exercise whereby you calculate what the child’s income vs expenditure will be. For example, are they going to receive grants, loans, or have any income from employment? What will their expenses be, so accommodation costs, bills, books, living expenses? The reason this is important is so that you can calculate what level of shortfall there is and what you need the other parent to pay. This is also what the court would do if a legal route was later pursued.

If there is no progress, then mediation could be a good option to talk through the issues with the other parent – a mediator is a trained professional who will allow you both to have your say and the aim would be to reach a financial agreement that way.

If an agreement cannot be reached, is there a legal remedy that a parent can pursue, once child maintenance has ceased and if the child needs ongoing financial support?

It is possible for a parent to make a court application under Schedule 1 of the Children Act 1989 for periodical payments (financial support) or for a lump sum for a child. However, the court only has powers to make orders until the child is 18, and if the children is over 18, they are required to make the application themselves.

For an application to be pursued, the child must be in “full time” education, or undergoing training, or there would need to be special circumstances (for example the child involved has a disability or vulnerability which means they cannot be financially independent).

When determining a schedule 1 application, the court would look at “all of the circumstances of the case” including:

the income, earning capacity, property and other financial resources which each person has or is likely to have in the future;
the financial needs, obligations and responsibilities which each person has or is likely to have in the foreseeable future;
The financial needs of the child;
The income, earning capacity (if any), property and other financial resources of the child;
Any physical or mental disability of the child;
The manner in which the child was being, or was expected to be educated or trained.

It is always important to seek early advice if you are wanting to know your options about making a court application. Our specialist team of family lawyers can advise you in respect of your options, prospects of success, whether an application should be made my you or your child directly (taking into account the court’s powers and the children’s age) and undertake a costs v benefits analysis of making any court application on your behalf.

We cannot agree on a school – What will the court decide?

Posted on 15th July 202224th January 2023 by McAlister Family Law

We cannot agree on a school – What will the court decide?

If you are separated parents and cannot agree on what school your children should attend there are considerations that both of you need to keep in mind. Here, Jemma Wentworth discusses what happens when a separated couple cannot decide on which school their child should attend, and how the Court’s decision may vary depending on the care arrangement.

If it is agreed between you that one parent is the primary carer, meaning that one parent deals with the day to day needs of the children, and the children’s home is with that particular parent, then common sense must prevail. The school most local to that parent, or the school being selected by that parent, should be first consideration.

If that educational setting is not agreed by the non-primary parent, justifiable reasons must be put forward setting out why another setting should be considered. This is a scenario when obtaining legal advice would be beneficial.

However, if there is a shared care arrangement in place, thereby resulting that both parents’ homes are where the children equally call their home, and if the parents cannot agree on an educational setting, obtaining legal advice is vital and an application to the family court may well be required.

Initially, other forums for alternative dispute resolution to resolve the dispute must be attempted, for example, mediation. If an agreement cannot be reached, a court application should be issued.

The application that would need to be made comes under section 8 of the Children Act 1989 and is for a specific issue application; to specifically address what is the best interests of the children’s education. Within the proceedings evidence shall be put forward by both parents to set out how their proposal is in the children’s best interests.

However, if one parent has taken matters in their own hands and begins the process of changing the children’s school without the other parents’ consent, that parent would need to issue an urgent application to the family court to prevent the children’s removal from that school. This also comes under section 8 of the Children Act 1989 and would be for a prohibited steps order; to prohibit the children’s removal from the school without a court order to do so. In this case, any order of the court would need to be provided to the school as well as all those with parental responsibility.

In all cases and at all times parents are strongly encouraged not just to communicate their wishes, but to co parent effectively for the best interests of their children.

If you need advice on this topic, or any other matters concerning children issues, please get in touch with our private child team at McAlister Family Law.

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.