Who pays for school fees after a divorce?

How best to educate your children can be a subjective discussion at the best of times, but even more so when you add in the complexities of a divorce or separation. As of 2022, average school fees to attend an independent school are in excess of £15,000 a year. Add in boarding fees and your bill could top £36,000 per academic year. All in all, it’s a serious financial commitment.

It’s little wonder, then, that the subject of school fees often comes up when parents are negotiating a financial settlement after their divorce. But just who is responsible for paying school fees and where do you stand legally?

The good news is that the courts have the power to make an order for the payment of school fees, but it can be more efficient and less costly for both parents to come to an agreement away from the court system. Even so, while you may feel that providing a private school education for your children is important, a court may not view private education as a necessity, particularly if there’s a quality state school provision in your area.

Here we’ll talk through what a court will consider when reaching its decision about school fees, so you’re fully aware of the process

Are the children already in private school?

Whether the children are already attending a private school can be a significant factor in the court’s decision-making process and it may not be a purely financial decision. At the heart of family law is the need to do “what’s best for the child”, which is imperative when they’re already dealing with significant changes in their home lives.

Where children already attend a private school, the court will acknowledge that the children may have important and valuable ties there. Moving them to a new school may not only disrupt their education but cause unnecessary upheaval in their connections.

The court will also look at the parents’ intentions with regard to the children’s education. Perhaps it was always the plan that the children would attend an independent or private school when they reached a certain level of schooling. Every family’s circumstances are unique and the court will carefully weigh up the information presented to reach an outcome that’s in the best interests of the children.

What if my ex refuses to pay school fees?

It can be frustrating and extremely upsetting if your ex refuses to pay school fees. After all, it’s in your children’s best interests to get a high-quality education, before stepping foot on the career ladder. How the court deals with an ex-spouse who refuses to pay school fees can depend on whether your children were already attending or there was a mutually agreed intention that they would attend a private school.

Where children are not already attending a private school and there was no clear indication that their parents intended for them to attend a private school, then it’s unlikely that the court will intervene and force the ex-spouse to pay for school fees. In many cases, the courts view school fees as a luxury, and their responsibility is to ensure that basic needs are met first, such as accommodation and food.

In the event that children have been attending private school and the school fees are affordable for your ex-spouse, the court is likely to be critical if he or she stops paying. A reputable firm of family law solicitors can help you to apply for an order under the Matrimonial Causes Act, which would enforce that the “paying parent” pays a contribution to cover the school fees.

If having imposed a court order, your ex-spouse still refuses to pay, then they could be found in contempt of court and be required to pay a fine or even face imprisonment.

Aside from the court legalities involved if your ex doesn’t pay their share of the school fees, it’s worth keeping in mind that the school will be entitled to enforce the terms of its contract with you. In all likelihood, both you and your ex-spouse signed the contract when enrolling your children at the school, so you could both be liable for any non-payment. While school bursary schemes may be available to provide assistance in difficult circumstances, the school could eventually expel your children if fees remain unpaid.

Can school fees be deducted from child maintenance?

Unless it has been specifically agreed in a family-based agreement, any divorce settlement or child maintenance payments you receive will not include school fees. If your ex-spouse claims that their child maintenance payments cover private school fees, then you should get in touch with a family law solicitor to look at your individual circumstances.

While child maintenance payments do not include school fees, you should be aware that private schooling can have a knock-on effect on the amount of child maintenance to be paid and even overturn the situation so that the receiving parent is required to pay child maintenance to the paying parent.

Firstly, the paying parent’s income could be reduced by up to 35% of the school boarding bill before the Child Maintenance Service (CMS) calculates the amount of child maintenance due. The CMS also counts the nights that the child spends with each parent to identify the “parent with care”. In other words, the main day-to-day carer of the children. The critical point to remember is that where children attend a boarding school, the CMS will not only look at where the children stay during the school holidays, but where they would have been if they had not been boarding.

In the event that the children would stay with the paying parent, then it could tip the balance in favour of the paying parent, forcing the receiving parent to pay child maintenance.

School Fees Order

Under the Matrimonial Causes Act, the court has the power to apply for a “school fees order”, which would force a parent to pay a contribution. When reaching a decision for a school fees order, the court will generally consider three key factors:

  • Where do the children currently go to school – a private or state school?
  • What were the parents’ intentions with regard to their children’s education?
  • Is private education affordable for the family?

Following a divorce, the family’s income often needs to stretch to two households rather than just one, so it can significantly affect the affordability of a private school education. Where financial resources are limited, the court is likely to view school fees as a luxury and not a necessity and will consider both parents’ financial circumstances when deciding if a contribution order should be made or not.

A school fees order generally requires money to be paid directly to the school bursar, so it will not exchange hands between parents. This can safeguard the cash, ensuring that it’s only spent on the purpose that was intended.

Contact Waldrons Solicitors

Every responsible parent wants to equip their children to face the world as best as they can, and for some parents, this may include a private education. Following a divorce or separation, the topic of money can become a touchy subject, bringing into focus the question of who pays the school fees.

While it’s always best to try to reach an agreement outside the court system, you may find you need support from knowledgeable family law solicitors. It’s recommended to seek advice early to help minimise any disruption to your children’s education.

Get in touch with us at Waldrons Solicitors, where our expert team of family law solicitors can help you with every aspect of family law from seeking a fair outcome from a divorce or separation to making arrangements for children.

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Last reviewed on 11/07/23 by Alka Wood who is a Solicitor