Private school fees can create an additional complexity when sorting out finances with your ex as part of your divorce or separation, and unlike child maintenance, there is no standard formula for determining who pays them or if they are to be shared, in what proportions. We have set out some practical guidance on how to navigate this.
What is the court’s approach to school fees?
If you and your ex-partner cannot come to an agreement in respect of school fees following a separation, the court can make an order for their payment as part of financial remedy proceedings on divorce (known as a school fees order). For unmarried couples, an order can be made under Schedule 1 of the Children Act 1989.
The child for whom school fees are to be paid must have been treated as a child of the family by the parties. This means that an order can be made in respect of children who are not biological children of the paying parent, such as stepchildren, or even grandchildren, in some circumstances.
When applying for a school fees order, you need to show that the child in question is already being privately educated, or that there was an agreement between you and your ex-partner that the child would be privately educated. If other children of the family are being, or were, privately educated, that might support your case in that it is appropriate for siblings to be treated in the same way. If the fees are affordable, the court will generally seek to preserve the status quo by ordering that the fees should continue to be paid.
The reality of separation is that your incomes now need to fund two homes rather than one, and school fees might become unaffordable because of that. In the case of T v T (Financial Provision: Private Education), the judge (Bennett J) noted that ‘private education is a luxury and must be balanced against the welfare and needs of all of the family’. The housing needs of the parties will usually be prioritised over school fees, if there is not enough money available for both. However, the court’s first consideration is the welfare of the children and there may be times when school fees must take a high priority to further their welfare. For example, where the children are in the middle of their GCSEs or A Levels, a change of school may be especially disruptive to their education.
How do school fees impact child maintenance?
Where the paying parent’s gross income is under £156,000 per year, the Child Maintenance Service (CMS) has exclusive jurisdiction in respect of child maintenance, and in the case of higher incomes, the court can order that ‘top-up’ maintenance payments are made.
The CMS may agree to the variation of a child maintenance calculation on the ground that a paying parent is paying school fees, but only in respect of the maintenance element of boarding school fees, capped at 35%, where this cannot be distinguished with reasonable certainty from the total fees.
As set out in the Child maintenance decision makers’ guide, school fees are not included in the list of payments to a third party that will qualify as a ‘voluntary payment’ (payment on account before a maintenance calculation is made) and so, in general, any school fees order will be payable in addition to child maintenance.
I want to remove my child from private school – what should I do?
If you want to remove your child from private school because, for example, school fees are no longer affordable following a separation, a change of school requires the consent of everyone with parental responsibility. Usually, this means both parents. If an agreement cannot be reached between the parents, an application to the court will need to be made for a Specific Issue Order under the Children Act 1989.
In the short term, you could contact the school’s bursar and explain your circumstances. They might be able to offer your child a bursary, or a payment plan.
The court previously ordered me to pay school fees but I can’t afford it anymore – what can I do?
VAT now being payable on school fees, and other financial pressures causing many private schools to increase their fees, have put an additional financial strain on parents. In the case of a significant change in circumstances, it is possible to apply to the court to vary a school fees order. A reduction in income, or an increase in fees, could be sufficient to justify a variation.
How Pinney Talfourd can help
If you are concerned about how school fees will be managed following a divorce or separation, our experienced Family team can provide practical legal advice to help you understand your options and reach a suitable arrangement.
We offer a free 45-minute consultation to eligible clients. To find out more, contact your local office on 0800 011 1195 or email .
More information
Feel free to contact our marketing team on 01708 229 444 or email