Within a formal application for financial relief ancillary to divorce (Financial Remedy Proceedings) the court has the ability to make an order for the payment of school fees over and above any assessment in respect of pure maintenance through the Child Maintenance Service. Parents are often concerned that the breakdown of their relationship may impact upon the children and their schooling for a number of reasons, the payment of school fees being a particular concern. If the court is asked to deal with the issue it does so applying the considerations exercised in other areas concerning need and affordability:
(a) School fees often amount to a luxury and will be regarded more so by judges in areas where there is recognised good state school provision. Our offices are in Tonbridge and Sevenoaks and there are of course widely acknowledged exemplary grammar schools in Sevenoaks, Tonbridge and Tunbridge Wells.
(b) Sometimes school fees and the payment of them can be a simple mathematic exercise. If the income that was previously used to support one household is now stretched to two there may simply not be enough money within the equation as a whole to afford to continue to pay school fees. School fees will often be the first thing to go in the effort to bridge the gap between needs on one hand and resources on the other.
(c) With such a constrained budget, even if both parents agree that the children should continue to be privately educated, there may need to be a significant compromise elsewhere within the family or an acknowledgement that an additional level of income needs to be obtained. A wife who has previously not worked may need to find employment in order to contribute towards her own income need thus enabling an element of the overall household income to be devoted to the payment of school fees whereas it might otherwise be used to support a more basic need.
(d) Courts will generally accept the continuity of schooling may be very important for children who are already experiencing significant changes in their personal lives but a court will almost never prioritise school fees above more basic income needs.
(e) If both separating parties are of the view that private education should be continued at all costs it may be possible to ringfence an element of the matrimonial capital in order to discharge those school fees on an ongoing basis. It is sometimes the case that schools will offer a modest reduction in overall fees if those fees are paid upfront, although one has to have in mind of course that the security of fees paid upfront is ultimately bound to the school’s financial security. Again, allocating matrimonial capital in this manner by consent may result in compromises elsewhere, for instance in terms of standard of accommodation.
(f) Tied in with the above, some high earning individuals sometimes ask for a fees fund to be created out of the joint finances of the marriage. This can mean passing, to the financially dependent party, the cost of one-half of the school fees that realistically could and should be met from the future income of the high earning party (this is of course a subjective test). For others, it is a logical way of creating a jointly controlled resource that helps to reduce the chance of future disputes over the payment of school fees, secures the school fees and provides security against the loss of income on the part of the earner. Individuals need to be aware of the prospect of overly compromising their own position because of the emotional tie that they have to payment of school fees and creating minimum disruption for the children.
(g) If the issue is to be dealt with consensually, there needs to be very clear thinking about what is to be covered by the school fees order. Does it, for instance, include extras? Does it include the cost of trips, uniform, sports equipment, music lessons, etc? If a judge is imposing a school fees order clear guidance needs to be sought from the court as to the extent of the order that is being created and what extras the judge intends to include.
(h) Overall proportionality needs to be considered. It is clearly financial suicide to spend £40,000 on legal fees arguing about whether or not two years of school fees should be paid. It is very important that parents try to achieve agreement over these sorts of issues rather than litigating them. Compromise is important as is the ability to take on board unpalatable but unavoidable facts.
(i) Generally, a school fees order will require the fees to be paid direct to the school bursar. Parents have to be aware of their contractual obligations. If both parents have signed the school’s terms of business then they are generally equally and severally responsible for the payment of school fees. If the paying party defaults (perhaps he or she has lost their job) then the school is entitled to pursue either parent for the outstanding fees. In this scenario therefore it is perfectly possible to think that you are in a situation whereby your fees are being paid by your ex-spouse but then find that you are personally responsible for (and indeed paying) the fees.
There are some knock-on effects as far as the Child Maintenance Service is concerned. Up to 35% of a school boarding bill may be discounted from the paying party’s income before the assessment is created. The Child Maintenance Service also carries out a fairly artificial calculation when counting nights. In order to identify which parent is the “parent with care,” the CMS looks not at who has more nights (e.g. during the holidays) but at where the child WOULD HAVE BEEN during the term time if it were not boarding. That itself may be a subject of argument between the parties although the argument has never been exercised because it did not need to be as the child was boarding. In the most extreme of cases, the paying parent (under the court order) could reverse the maintenance situation and claim maintenance from the financially dependent party adopting the premise that the child would have spent more time with him or her had it not been boarding.
The overall aim must be to try and achieve an agreement on the topic as early as possible. That serves to reduce the emotional upset for children, expenditure on legal fees and agreement between parents over this topic appropriately communicated to the children will lead to a message of joint parenting being communicated to children even if the physical outcome is not the one that is most desired by the child because it is unaffordable.
For further information on any aspect of relationship breakdown or divorce, please contact the family law team on 01732 747900 or email [email protected]. Warners has offices in Sevenoaks and Tonbridge in Kent.
This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.