School Fees & Divorce: How Are They Dealt With?

In the family courts, a judge can make an order that school fees should be paid on top of any child support (for example, arranged through the Child Maintenance Service). In many areas the deadline for applying for a school place is 31 October. Little wonder that the choice of school and the resulting issues around the payment of any school fees has bubbled to the top of so many separated parents worry-list. These are our top tips if you are faced with reaching an agreement on the payment of school fees on divorce:

1. When parents separate it can become even harder to afford school fees when the financial resources which just about met the needs of one home, now need to be stretched across two.
2. If the family courts are involved in deciding the outcome, school fees will often be the first thing to “go” in the effort to bridge the gap between needs on the one hand and resources on the other. Where both parents insist that they want private schooling to continue the family court will try to work around this ‘fixture’.
3. Continuity of schooling may be very important for a child who is experiencing huge change in their home life, their identity, even the sibling group and parental figures as their parents separate. Even if the schooling has ceased to be affordable in terms of income, a carve out from capital to carry the child through to a sensible stage (eg. post GCSE) may be an appropriate priority.
4. Some high earners ask for a school fees fund to be carved out of the joint finances of the marriage. In some situations, this might be a means passing, to the financially dependent spouse, the cost of half of the school fees, that realistically could and should be met from the future income of the high earning party. For others it is a sensible way of creating a jointly controlled resource which helps to reduce the chance of future disputes over the payment of school fees and is a hedge against a downturn in the capacity of the high earner to pay in the future. While choices are always made at the time of a divorce, sometimes the emotional pull of wanting to ensure that children have their school fees paid can blind the financially weaker party to the long-term effect of their decision.
5. Schooling is just one part of the financial jigsaw at separation. It can easily become a secondary consideration with all the other things that have to be managed. Some parents will experience the agony of spending what they could have used to fund schooling in agreeing the arrangements for the school fee payment. The importance of managing a process that maximises the chance of constructive, co-operative, lower-cost outcomes cannot be overstated. It is very important to appoint the right professionals to ensure that these opportunities don’t disappear. For others it is an aspect written up in a rush as the rest of the financial package comes together perhaps at the court settlement hearing (“the Financial Dispute Resolution” hearing) and bits missed are later regretted.
6. If there is an order for the payment of school fees, there is no standard formula for what other costs (uniform/ extras on the school bill/ activities/ musical instruments etc.) should be part of the package. Creating a clear order is important, being able to do so against the backdrop of changing activities and changes in the school’s approach to dealing with these claims is challenging.
7. A change in a child’s schooling is not a decision to be made unilaterally. In the absence of agreement between the parents, the court must decide. The court would – and the parents should – take into account the child’s wishes and feelings in the light of their age and understanding. This may mean a slow and expensive process. Each side is likely to have to meet their own costs – however the overburdened family courts are showing themselves increasingly impatient at parents who have failed to find ways to reach their own agreements.
8. Of course where there are deadlines for school applications, the family court is unlikely to deliver decisions in time. Arbitration may provide a faster / cheaper way forward. Disputes can be settled on paper submissions but it would be unlikely that decisions can be made without an independent social worker seeing the child so that their wishes and feelings can be heard before any decision is made.
9. Usually a school fees order provides for the school fees to be paid direct to the school. But if the paying parent defaults then, as usually the contract is signed by both parents, this can sometimes leave the financially weaker party in a difficult situation. The only way of enforcing the order is to go back to court – which is time consuming and expensive. Finding a way forward is crucial. In the aftermath of separation, particularly where the initial process was very bruising, this may be challenging. Check the contract with the school: who is liable to pay and who will face proceedings from the school if the school itself takes enforcement steps. For many schools, however, excluding the child is a more likely approach.

Our advice would be to hold on to the principles of listening, realism, flexibility, focusing on the child and perhaps recognising that perfect and just answers may be hard in this most challenging of areas.  If the separation has been managed constructively and with respect on each side, the parents’ ability to solve these challenges when change happens is more likely to be intact – where communication is hard, consider appointing a mediator to help.

With this in mind, you might be interested in the unexpected ways that the Child Maintenance Service deals with boarding school arrangements:

1. Up to 35% of the school boarding bill may be discounted from the paying party’s income before running the CMS formula.
2. When counting nights to help identify who is the parent with care, the CMS looks not at who has more nights (eg during the holidays) but at where the child would have been during the term time if they weren’t boarding. This can generate unexpected outcomes where for example the ‘residential parent’ has moved away from an area e.g. for financial reasons but the ‘paying parent’ happens to have stayed closer to the school.  The paying parent (under the court order) can up-end the situation and in some cases start to claim maintenance from the financially dependent party.

The imperative at these times is to start out early. Better still and for many families it may be to avoid starting out from here at all: this is the sort of issue that brings to the fore the importance of creating a culture of constructive decision making for the separation years.  Otherwise, and inevitably, these issues become weighed down by all the frustrations and disappointments of the earlier disputes.