Deferring University Education; what might separated parents expect?
In this blog, Kara Swift, an associate at Family Law in Partnership, discusses the implications of deferring university for separated parents. How will this affect existing financial orders? Kara discusses the impact this might have for separated parents, specifically regarding child maintenance obligations, Mesher Orders and potentially selling the family home.
According to a survey conducted by London Economics it is estimated that the number of UK-domiciled students deferring their place at University for the coming academic year (September/October 2020) is likely to be 17% higher if the COVID-19 restrictions remain in place. According to a study by MyUniChoices as many as 37% of those asked said that their plans to go to University straight away had changed. It is therefore likely that there will be a higher number of adult children remaining at home with their parents this September rather than going to university.
Impact on child maintenance
The starting point when considering whether this is going to change existing child maintenance obligations is to check whether there is a court order in place or not.
- If there is a court order which includes an obligation to pay child maintenance check whether the wording refers to the end date of the obligation to pay being linked to the child’s age, whether they are in full time education, what level of education and whether it includes a gap year.
- If there once was a court order that included an order for child maintenance, but an application was subsequently made to the Child Support Agency (“CSA”) or the Child Maintenance Service (“CMS”), then the administrative assessment that followed is likely to have been extinguished by the court order and the jurisdiction of the CSA or CMS applies. But care is needed as other agreements in the order may have extended the obligations.
- If there is no court order, then the focus turns to either the CSA or CMS and what their calculation assesses should be paid. Crucially these arrangements will usually end after A-levels, at which point, there is no obligation to pay or entitlement to receive unless there is the possibility of returning to court to create a new obligation – but this a legal minefield.
It is, therefore, possible in certain circumstances for an application to be made to the court or for child maintenance to be varied. However, we have little guidance from the courts but some judges take the view that maintenance should not be ordered to cover a gap-year because the law provides for child maintenance to only be paid up to 18 years of age with extensions beyond that if a) the child is attending education or professional training or similar or b) if there are special circumstances.
An applicant might point to the unique circumstances of the Covid-19 pandemic, but it is questionable whether the term ‘special circumstances’ can apply to a whole generation. That could be a hard argument to win but on the other hand, a judge may well be reluctant to see the financial burden of support fall entirely on one parent, particularly if they are financially dependent on the paying parent.
Mesher orders and selling the house
Mesher orders allow one parent to remain in the family home with the children but with deferred arrangements for selling the home once the children are independent. The court’s order will set out what the triggers for sale are and how the proceeds of sale are divided. A common trigger event is the child attaining a certain age or completing a level of education. This means that families with a Mesher order could face having to sell the family home even though the child has not yet flown the nest.
Deferring university may not have been thought about in the original drafting. Getting extensions to a deadline for sale may not be easy. We know of one case dealing with a successful application for an earlier sale but postponing until a later date may depend on whether a new application could be pursued. Whilst reserving our rights to argue that it is an obvious entitlement (depending on who we were appointed by), our current view is that this would be a pretty optimistic claim to pursue.
For further information visit our dedicated website page on the variation of maintenance payments here.
Kara Swift won the LexisNexis Family Law Young Solicitor of the Year 2019 an award which recognises a solicitor with under 5 years post qualification experience who has made an outstanding contribution in family law.
For specialist family law advice, please contact any of our top London divorce and family lawyers on T: 020 7420 5000 or E: firstname.lastname@example.org.