School fees and divorce: seven ways to protect their payment [Updated 5/2018]
Are you concerned about how to pay schools fees after separation or divorce? You are not alone. Director Rita Gupta offers some advice on an issue that concerns many of our clients – and their children.
School fees can be a major concern when you and your spouse/partner decide to go your separate ways. As a parent, you want to keep your children in a stable and supportive school environment during a turbulent time in their lives. You’ll probably want to spare them the disruption, distress and loss of social contacts that moving to a new school may involve. For many clients, their own social circle can revolve around the school, so this can lead to a further loss and concerns over social embarrassment.
In our May 2018 update to our original 2017 blog, we’ve included details on the various Court Orders that can be put in places to provide for payment of school fees. For more detail, please don’t hesitate to contact us to discuss your situation during a free 30-minute consultation.
School Fees Orders
In an ideal world, if you are divorcing, you and your ex-spouse should agree on who pays the schools fees as part of your divorce financial settlement, and without the need to go to court.
However, if you fail to agree who will pay the school fees after divorce, you can apply to the Court for a School Fees Order. This is usually creating by both parties agreeing who pays what, and then embodying that agreement into a formal order. The order can cover the entire school fees plus extras such as music lessons, uniforms, school trips, etc.
The Court can also order periodical payments for school fees as part of a Financial Remedy Order (formerly a ‘Consent Order’), which lays out who makes the payments and how often.
If no agreement can be reached, the Court can be asked to sort out school fees payment through a Specific Issue Order. One of the conditions of such an Order is that ex-spouse looking for a contribution towards school fees must be able to show that moving schools would have an adverse impact on the child or children involved, i.e. the Welfare principle applies.
If any Order regarding school fees is already in place, you’ll need to apply to the Court to vary the Order if your circumstances change, and you’re now struggling with making payments.
School fees and child maintenance
It’s important to remember that the obligation for assigning funds for school fees payment is separate from child maintenance payments. The Child Maintenance Service cannot order a parent to pay school fees. If you or your ex-spouse is struggling to pay both school fees and child maintenance, maintenance will always take priority. So, a Court would not rule for any reduction in child maintenance just because you also pay the school fees.
School fees and spousal maintenance
However, school fees are not separate from spousal maintenance. In a divorce case in 2015 where the ex-husband earned £195k per year and the ex-wife earned £18k (3), the High Court heard that the husband no longer wanted to pay all of one child’s fees and 25% of the second. The High Court ruled that:
“Both parties want their children to attend private school and both have to make sacrifices as a result.”
So, the wife has her spousal maintenance ended, but the husband paid all the school fees for both children.
Seven ways to protect school fee payments
You will need to act quickly to ensure school fees payments issues are resolved in good time for the start of a new term, and allow for the inevitable time taken for Courts to make any relevant Orders required.
1. Clarify your current position
Make sure you understand exactly:
- who currently pays the school fees
- when they are paid
- how they are paid
For example, fees may be paid from a joint account or credit card, which you may not have access to after separation. Equally, some couples may opt for their company to pay school fees, which involves establishing your role within that company (if any) and entitlement for that payment method to continue. (See our article “Divorce doesn’t need to be taxing” for more info on this.)
2. Settle your financial settlement
As part of your divorce, you and your ex-spouse will need to create and agree an overall financial settlement between you. This will involve full and accurate disclosure of all finances, including payment of school fees. You should always consider negotiating the school fees as part of your long-term overall financial settlement. Professional advice is important to secure the best financial outcome for you and your family.
3. Inform your school
The liability to pay for school fees is normally in joint names, so there is joint liability for the full amount of any outstanding fees. Your school needs to be informed of changes that might affect the method of payment and your ability to pay. Informing a school early enables them to support your child/children and understand their circumstances, without the need for children to explain the situation themselves. Arrange a meeting with the bursar to discuss your situation.
4. Investigate bursaries
If you are concerned that you may not be able to continue to pay fees at the current level or frequency, call your school bursar and explain your position. Ask about the criteria and process for applying for bursaries; the availability and requirements vary considerably from school to school. Try to agree a postponement of payment or staged payment schemes to help you whilst a financial settlement is reached for your divorce.
5. Time moving schools and giving notice
If you do decide to move your children from one school to another, there will usually be a minimum of one term’s notice from their current school that will have to be funded. Even giving notice in the middle of the summer term is no guarantee that you would not be liable for next autumn’s term fees. Make sure any such ‘overlap’ of fees between the previous and new schools is accounted for in the financial settlement.
6. Ensure a CMS assessment has been completed
The Child Maintenance Service (CMS) uses a person’s taxable gross annual income as a basis to work out the weekly child maintenance amount that person should pay. It is important that this assessment gives the full financial picture, otherwise the CMS applies a default rate which may not be the right amount. Do bear in mind that child maintenance is separate to school fees. You may not be receiving the correct amount.
7. Consider a maintenance pending suit application
Even the most amicable of divorce proceedings takes time to complete, and the gap between your financial separation and receipt of the first financial settlement payment can be considerable. If the other parent stops making payments, then you may need to consider issuing a maintenance pending suit or an interim maintenance application. This will assist as a means of obtaining money from your spouse to pay any pending school fees. At LGFL, we’d be happy to advise you fully on these solutions.
You should be aware that courts see private school fees as a luxury. Housing and basic needs are a much greater priority for most judges, who can take a pragmatic view to the situation. Quite simply, if the money isn’t there to support two households and private school fees, there is a strong chance that a child will have to move out of private education. This is why specialist advice is necessary.
Need help with agreeing who pays the school fees?
Call us here at LGFL. We have helped hundreds of parents successfully secure school fees for their children, and ensure continuity in their education, social network and activities through divorce and beyond. Rest assured, we can help you too.