As of 1 January 2025, parents of children at independent schools will be faced with an increase to school fees as a result of the Government adding VAT to all private school fees (excluding some special educational need students). With the Independent Schools Council estimating average independent school fees at £18,063 for day pupils, exclusive of VAT, the addition of VAT is likely to be a significant financial setback and will no doubt make private schooling prohibitively expensive for many families. This could be all the more worrying for separating or divorced parents.
Sadly, the reality for many separating couples is that their joint finances are placed under considerable pressure on separation, with the resources used to fund one household now being stretched to run two homes. Where school fees have been finely balanced prior to separation, they may no longer be affordable and the introduction of VAT could well be the final straw.
Those who are already divorced may be committed to a school fees order which places an obligation on them to discharge school fees until the children leave school, such order being made long before the addition of VAT. Whilst parents (and the Court) are likely to have considered inflationary rises to school fees as part of an affordability assessment, an increase of 20% midway through the academic year was likely unforeseen.
Notwithstanding the increased fees, many parents will wish for their children to continue their education at their current setting and may feel that it is all the more important for there to be stability at school if arrangements are unsettled at home.
How will school fees be dealt with? Will your ex have no option but to pay?
The starting point is to consider whether an agreement can be reached with the other parent. It is common for parents to have strong feelings around the topic of school fees and whether private education should be a priority for the family.
If you are aligned on the decision to continue with private education, it may be helpful to work together with a financial advisor in order to manage post-separation finances in a way which provides for school fees to be prioritised. Your agreement can then be recorded in the overall financial consent order.
If an agreement cannot be reached directly between the parents, you may wish to try other forms of dispute resolution, such as mediation, arbitration or solicitor negotiations, before making an application to court for determination of whether there should be a school fees order.
What is a school fees order?
A school fees order is an order made by the court as part of wider financial remedy proceedings on divorce and sets out the obligation to pay school fees. It will record which parent should pay the fees (or in what proportions if both parents are paying), how the fees are to be paid and for how long. Provision is typically made for extras on the school bill too, such as music lessons, speech and drama lessons and compulsory trips.
If the parents are not married, then a school fees order can be made under Schedule 1 of the Children Act.
When do the courts make school fees order?
There is no precise formula, however, the court will consider the affordability of school fees as part of the overall consideration of the family’s finances. The reality is that the family’s housing needs (i.e. housing both parents separately) will almost certainly take priority over the payment of school fees, as will needs based maintenance payments and any child maintenance liability.
If school fees remain affordable after considering the family’s holistic needs, the court will then consider continuity for the children and this will be given more weight by the court if the children are approaching or midway through key exam years (i.e. GCSEs and A-Levels). As part of the court’s assessment, the judge may also consider whether siblings have been privately educated and whether there was a familial intention to send the children to independent schools during the marriage.
What if there is a school fees order in place and I can no longer afford to pay?
If you are the payer of an existing school fees order and the increase to school fees (as a result of the addition of VAT) has made the fees unaffordable, the first step is to discuss the issue with the other parent (either directly, or as part of non-court dispute resolution).
If this does not prove effective, you can apply to the court to vary the order. The court will consider your financial circumstances (which you will need to evidence) and whether a variation is justified. If successful, a variation could limit the duration of the order or reduce or stop the order completely.
Practical tips on dealing with school fees after separating
- If your child attends an independent school, there should be an early discussion about the payment of school fees pending an overall financial settlement. If it is affordable, generally it is preferable for the status quo to be maintained, so that the fees continue to be paid as they were during the marriage/relationship (at least until a further agreement is reached). It is important to address school fees from the outset with your legal team so that you can be prepared for all eventualities.
- Check the contract. Typically both parents have joint and several responsibility for the fees, even if in practice one parent makes payment. The contract should also set out the notice period, should a change of schools be agreed.
- Inform the school bursar of the change to your circumstances. They may be able to offer a payment plan or consider whether your child is eligible for a bursary.
- A change of schools requires the consent of both parents/everyone with Parental Responsibility. If you and your ex-partner cannot agree which school your child should go to and out of court dispute resolution does not assist you in reaching a resolution, an application will need to be made under the Children Act 1989 for a Specific Issue Order.
- Given the sums involved, it is important to take a pragmatic approach to litigation on school fees. It is not proportionate to spend vast sums litigating the issue, when this money could be better applied towards the fees.
How can family law solicitors help with financial disputes over school fees?
At Rayden Solicitors, as specialist family lawyers, we understand that selecting a school which supports your child is key to their welfare. Many parents feel strongly about their child’s education and we understand the importance of the matter of school fees as part of a financial resolution. It is not a straightforward issue and the affordability of school fees is often finely balanced. If you are concerned about school fees as a post-separation issue, please contact us at the earliest opportunity to consider the way forward.
