…will the court make my spouse pay?

A difficult part of resolving financial issues in a divorce is that often the lifestyle that parties lead is commensurate with the income which they have as a couple. When they split, that same income must suddenly run two homes rather than one. This may mean a change in the standard of living, holidays or cars; but what happens if your child’s education is at stake?

For some, private education becomes something which is no longer a priority over other family outgoings. Given that fees for day schools could be in the region of £15k per child per year, more for boarding schools, parties may disagree on whether their child’s education is worth continuing to pay for.

What is the court’s view?

The question of which school a child attends isn’t dealt with as part of the resolution of financial claims. If there’s an issue of which school is best, then this should be determined under the Children Act 1989 in line with the child/ren’s best interests.

The court, on a financial application, can only resolve the issue of who pays. Ultimately, the dispute may settle if the court declines to make a school fees order, and the person who wants the children to attend private education has no other method of paying.

When looking at financial issues the court will look at multiple factors known as the ‘section 25 factors’:

(a) the income, earning capacity, property and other financial resources which each of the parties to the marriage has or is likely to have in the foreseeable future
(b) the financial needs
obligations and responsibilities which each of the parties to the marriage has or is likely to have in the foreseeable future
(c) the standard of living enjoyed by the family before the breakdown of the marriage
(d) the age of each party to the marriage and the duration of the marriage
(e) any physical or mental disability of either of the parties to the marriage
(f) the contributions which each of the parties has made or is likely in the foreseeable future to make to the welfare of the family
(g) the conduct of each of the parties (though this isn’t usually considered in the vast majority of cases)

Where the court feels school fees are affordable, the court may make a “school fees order” obliging one or both parties to pay all or a portion of the fees on top of any child maintenance and any spousal maintenance payable.

Can capital be set aside to pay for fees by the court?

Strictly, the court has no real power to force parties to ring-fence a sum to pay for school fees. Parties can, and do, agree to do this or to put funds into trust for that purpose as part of settlement reached via negotiation.

Grandparents have always paid, can the court force them to continue?

The court has no power to force a third party to continue to meet school fees, although it’s possible they will consider the way school fees have been met historically when making any decision overall.

What will a school fees order cover?

Standard wording might often cover “reasonable invoiced extras” perhaps specifically excluding exceptional items such as trips, but it is sensible to give consideration to what the expectation is. It’s important to look at the bigger picture and the outcome of your case. E.g. carving out a school fees fund might seem attractive because it secures your child’s future, but it might prejudice your position overall if it’s the case that those fees should really be being paid from your spouses’ income. Before reaching any final financial settlement, you should always speak to an experienced family solicitor.

If you have any questions about this issue, or any other family law matter, please contact the McAlister Family Law team at: hello@mcalisterfamilylaw.co.uk