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School Fees and Divorce or Separation: advice to help negotiate how school fees are paid

The court has jurisdiction to make an order that a party to proceedings should contribute fully for school fees and associated costs for a child. In proceedings, the application to the court will usually show that the child in question is already attending private school or alternatively, that there was a prior agreement between the parties that a child would attend private school at an agreed stage of the child’s education.

There is also case law supporting the principle of private school fees in circumstances in which a paying party’s children from a former relationship attended private school creating an “expectation” that the parties’ child would also attend, despite no agreement on the issue.

Cases before the court are determined using the factors set out in s.25 Matrimonial Causes Act 1973 to distribute the assets and wealth of the parties. These factors include the standard of living enjoyed through the marriage and the needs of the parties, placing the primary concern on the needs of the children of the family. For many families now looking to fund separate living arrangements, school fees may be a luxury that cannot be maintained in the eyes of one party to a dispute and this can be a difficult balancing act for the parties and court alike to attempt to address.

Many separating couples understandably focus on the impact of their separation upon the children, seeking to cause as little disruption to them as possible. It is important to try and agree arrangements for children if possible, including their schooling.

The first issue to address is whether, upon separation, the parties still remain of the view that a child’s attendance at a private school is desirable. This may be a political or moral viewpoint that is altered following separation, or perhaps a practical decision necessary from the parties new living arrangements after the family has separated. Open and frank discussions are likely to assist the parties here in the first instance, potentially benefitting from mediation or reference to a Parenting Plan for future child arrangements.

The second issue to address is whether continued attendance at private school is financially viable. The parties may both agree that private schooling is a preferred arrangement, but withdrawing a child from school for lack of funds midway through their education may have a greater detrimental impact on their welfare that non-attendance in the first instance. To address this, full, frank and clear disclosure is vital to enable the parties to be fully appraised of one another’s financial circumstances and to enable them to fully understand if continued payment of school fees is viable in the longer term. In the 2006 case of T v T, the judge stated that it would be “unfair” and “damaging” to a child to withdraw private school fees when the parties had made plans to privately educate their child.

Once the parties are in agreement that private schooling remains desirable and can be funded, the parties must address how the fees will be met. This will always be a decision that is unique to each family unit, with a discretionary assessment taking place on the impact of Child Maintenance to the payments, whether the payments should come from capital lump sums, potentially secured maintenance payments underpinned by appropriate insurance etc. The appropriate arrangement will ultimately be determined by the facts of the individual case, the assets available and corresponding issues of liquidity and flexibility. It will usually be appropriate to obtain independent financial advice about the impact of the payments on a party’s financial circumstances.

Finally, clarity of what is covered by “fees” is vital to prevent any dispute or litigation further down the road. It is rare that attending school does not require a financial commitment exceeding “just” the fees to the academic institution itself. The costs of associated extras, e.g. uniforms, music lessons, school trips, Duke of Edinburgh Award participation, skiing trips etc must also be addressed under the same exercise.

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Philip is a Resolution member and formed part of the campaign to support no fault divorce proceedings. Philip is also contributor to the legal and national media on family law issues.

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