What happens if there is a dispute about payment of nursery or school fees?

Disputes can arise about how educational costs for a child should be funded, as well as about the choice of educational establishment.

On relationship breakdown, and thereafter, disputes can arise about how educational costs for a child should be funded, as well as about the choice of educational establishment. How to deal with disputes about the choice of educational establishment are dealt with in our earlier article.

The procedure to be followed depends on whether the child’s parents are divorcing, already divorced, or unmarried.

For the purposes of this article, ‘school fees’ refers to both school and nursery fees.

Ability to pay

In all circumstances, the court will determine the case largely with reference to the ability of either or both parties to pay, their standard of living and any expectations of how a child is, or was, planned to be educated.

An order may be made against one or both parties to contribute to the fees, usually including a contribution towards reasonable ‘extras’ appearing on the school bill if agreed in advance.

Each case is highly fact-specific and early advice should be sought to help prepare the case and address issues anticipated to be raised by the other parent.

Divorcing parents

During divorce proceedings, school fees orders can be made by the court in appropriate cases.

They are considered as part of the financial remedy process, and determined largely with reference to the ability of either or both parties to pay, once other financial obligations and responsibilities have been discharged, including child and spousal maintenance.

The judge at any final hearing has a wide discretion in deciding how to distribute the assets and income of a marriage. In applying that discretion, he or she will consider what are known as the 25 factors (s25 Matrimonial Causes Act 1973). These include:

(a) The income and earning capacity of both parties now and in the foreseeable future

(b) The financial needs, obligations and responsibilities of both parties now and in the foreseeable future

(c) The standard of living prior to marriage breakdown

(e) Any mental or physical disability of either of the parties

First consideration must be given to the welfare of any child under the age of 18.

Unmarried parents

An unmarried parent will need to pay child support for their child, but not maintenance to their former partner.

A parent can apply to the court under Schedule 1 Children Act 1989 for a school fees order.

Whether they are successful will depend on the court’s analysis of income and expenditure for both. If the court is satisfied that the school fees are affordable, the application is likely to succeed.

Schedule 1 claims can only be made if they benefit the child. They are assessed using the following criteria:

(a) The income, earning capacity, property and other financial resources which each person … has or is likely to have in the foreseeable future;

(b) The financial needs, obligations and responsibilities which each person …. has or is likely to have in the foreseeable future;

(c) The financial needs of the child;

(d) The income, earning capacity (if any), property and other financial resources of the child;

(e) Any physical or mental disability of the child;

(f) The manner in which the child was being, or was expected to be, educated or trained.

Already divorced parents

If parents are already divorced, but the original financial order omitted to make an order for school fees, perhaps because the child was too young for this to be a consideration at the time, an application can be brought under Schedule 1 as above.

Disputes about choice of school

If you are also in dispute about choice of school, both applications should be heard together by the court.

Disputes about funding tertiary education

Please see our separate article about this issue.

If you have any queries or would like to discuss further, please contact Fiona.

Fiona Turner

Partner at Weightmans

+44 (0)161 214 0557

[email protected]