Back to school, but who pays the school fees after divorce?

In the large majority of cases, the Child Maintenance Service (CMS) retains jurisdiction for child maintenance matters even after a divorce. There are certain circumstances, however, where the Court retains jurisdiction in respect of child maintenance. These circumstances include:

• Cases where the non-resident’s income exceeds the CMS threshold of £156,000 gross per year.
• Cases involving children with special needs as a result of a disability.
• Periodical payment orders in respect of school fees

Ideally, the issue of payment of private school fees will be one of the matters agreed between the parties in resolving their financial matters on divorce. If an agreement cannot be reached as to school fees however, it may be necessary to make an application at Court for payment of or contribution towards school fees. In order to be successful, the applicant will generally need to establish that the child is already being privately educated or that there has been an agreement between the parties that they would be privately educated. If other children of the paying parent are being or have been privately educated then it is arguable that the child should be treated in the same way as their siblings.

In dealing with applications for school fees orders it has been noted that ‘private education is a luxury and must be balanced against the welfare and needs of all of the family’. Therefore the resources of the parties and the affordability of such fees are highly relevant. The Court will also have regard to the welfare of the child though and it has been previously noted in dealing with such an application that where plans had been made for a child to be privately educated then pulling the plug on it may not only be unfair, but even damaging.

If the Court decides that a school fees order should be made, it can be made by way of periodical payments (such as monthly payments) or by way of a lump sum order to provide a fund for payment of future school fees. Payments can be made to the resident parent or directly to the school in the form of the school bursar. The type of order that will be appropriate will be determined by the particular circumstances of each individual case.

If payment of school fees is in the form of periodical payments then it should be recognised that, as with all maintenance payments, they are open to variation if there is a significant change in the parties’ financial circumstances.

Whether a school fees order is appropriate and what form it should take is very much dependent on the individual circumstances of any particular case. As such, we would always recommend seeking legal advice from a family solicitor at an early stage, not least in the hope that an amicable agreement can be reached with the other party.