Most of the clients I meet with, whether through mediation or to give advice to, whose children are in private education stretch themselves to ensure they can meet school fees. There are not many couples where school fees are met easily from either savings or income. However, the wish to educate their children privately is important to them and they ensure they find a way to meet the fees each year. I often see annual bonuses allocated to meet school fees, there can be sacrifices on the holidays taken or extended family may help.

When a couple separate the financial needs of the family change. Previously, if they owned only one property, they had their income/s to run this property. On separation that income/s will have to be used to run two properties. The ability to meet school fees can then become much more difficult.

We would usually expect whatever arrangement has been in place to meet school fees to continue when the couple first separate while an overall financial settlement is reached. This can put even more pressure on the family at what is already a difficult time. However, maintaining continuity for the children while longer term arrangements are agreed is important. Decisions as to where the children attend school are part of a parent’s parental responsibility for their child. Parental responsibility is the  legal concept of the rights, obligations and duties a parent has in respect of their child. It is therefore not open to one parent to decide that the children need to change school due to the separation and a belief that school fees are not affordable. Decisions about where the children attend school should be made jointly.

There needs to be a proper assessment of the finances to work out what is affordable in the longer term. Ideally this will be done by the couple talking and agreeing directly, attending mediation or using the collaborative law process. When the assets are divided one of the first checks to be undertaken, as set out in law, is how the needs of the children and the parties are to be met. The most important need is housing and priority will be given to ensure this need is met. School fees are not a need, they are a choice.

For many couples, or certainly one of the couple, private education is one of their most important requirements from the assets. This is not how our law treats school fees where assets are limited. However, for those couples where school fees are a priority for both of them then they will work together to find a way to meet the fees and will continue to make sacrifices even following separation. This may mean for the longer term that the way school fees are paid changes to how the fees were paid during the relationship. The parties may set aside a savings fund which is used solely towards school fees. They may agree that future bonuses will be used for school fees or that they will buy less expensive properties to free up income to be used towards school fees.

The difficulty comes where one party feels that following separation school fees are no longer affordable but the other parent disagrees or wants to prioritise school fees. In this situation, if school fees are no longer affordable due to two homes now being needed our law will not prioritise school fees. For the parent who feels that private education is their most important outcome they will need to consider how they use their share of the assets. Are they prepared to live in rented accommodation and use their share of the capital towards school fees? Do they buy a smaller house to free up capital/income to meet school fees? Do they take out a larger mortgage on the property they are to live in to meet school fees? If they are prepared to do this it may be that the other person will then be asked to make a contribution towards the school fees but it depends upon the overall assets as to whether this will happen.

For those couples where school fees to continue to be affordable after separation then payment of school fees are part of the budget/needs of the family and the assets will be divided taking this requirement into account.

It will depend upon a couple’s circumstances as to who pays school fees in the longer term following a separation. In the short term, we would expect wherever possible, for the arrangement which has been in place to pay for school fees to continue until there is a final decision as to the division of the assets.

Hazel Manktelow is our expert family solicitor in Hampshire. Hazel is a qualified mediator and specialises in finances following a relationship breakdown, whether by separation, divorce, or dissolution of civil partnership. You can contact Hazel here.

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