Independent school fees — who pays following separation?

Commentary from solicitor Holly Allan-Hardisty

The UK Government’s plan to remove the current exemption from Value Added Tax (VAT) for independent schools is set to apply from 1 January next year.

In fact, all fees paid now for schooling from January onwards will be subject to 20% VAT.

Will this affect separated parents? And if so, what are the practical considerations they’ll need to address?

The context

The short answer is that it is likely to make separation negotiations more complex.

Let’s look at the background.

There are around 70 independent schools in Scotland with nearly 30,000 pupils. This census also shows around a quarter of those pupils receive some sort of financial support.

In our experience, when a couple splits, the question of who pays fees like this inevitably crops up — in fact, the separation itself can make it harder for parents to afford independent fees.

And with an additional 20% VAT payment, negotiations are likely to become more nuanced and potentially contentious.

After all, education can be a significant expense. Independent school fees vary widely across the country and, on top of those, parents also need to consider the likes of the cost of uniform, trips, meals and extra-curricular clubs.

Factors affecting who pays

There are several factors influencing the decision of who pays after a separation.

First of all, while having a paper trail detailing who decided the child should go to an independent school, and indeed if there’s any proof of who said they’d paid the fees is extremely useful as part of the negotiations, it won’t necessarily determine who has to pay.

1. Minute of agreement

The best approach after separation is to enter into a minute of agreement, which sets out the financial aspects of the split. This agreement can also cover child-related matters such as maintenance, school fees (and how they’re paid) and contact arrangements.

Once you and your ex-partner have signed the agreement, it’s legally binding.

Independent schools often provide agreements for parents. This will set out how much the payment should be, when parents (and indeed which parent or parents) should pay and what notice periods apply. The terms will always be relevant to any case, so please do bear in mind this is also a legally binding contract.

2. Court orders

Parents have a legal obligation to provide financial support for their child. As such, one parent could raise an action against the other for aliment under the Family Law (Scotland) Act 1985 towards school fees. Sections 1 and 3 of this act stipulate a parent can ask the court to make an order for the other parent to pay the child’s school fees.

In addition, section 11 (2) (e) of the Children (Scotland) Act 1995 says the court may make a specific issue order in circumstances involving educational expenses. The court’s paramount concern is ensuring any order it makes improves things for the child compared with no order being made.

The court will consider many issues when deciding to grant a specific issue order, and this includes which school the child already attends. This is important regardless of whether the child is at an independent school or not, because ensuring pupils aren’t faced with the distress of changing school is crucial.

3. Income and financial stability

The financial capability of each parent is critical. This can include income on a traditional month-to-month basis; however, this can also include assets and projected future income.

In the case of Z v X [2023] CSOH 48, a father lodged an appeal when the court ruled he was liable for 100% of school fees for his children until he resigned from his job, when he’d be liable for one-sixth of the fees.

He declared he was practically bankrupt. He had however, bought a reservoir before he resigned. The court took the potential proceeds of the reservoir sale into consideration and upheld the original decision. Had this not been the case, the mother would have the pay the rest of the fees after her ex-spouse’s resigned.

The type of school

The court will carefully consider how affordable it is for you and your ex-partner to pay for school fees. In X v X, a case which called in Edinburgh Sheriff Court in 2021, the court found neither party had the means to continue paying for private school fees. The sheriff refused to order the matrimonial home be sold to cover this cost. When considering both options, the sheriff found moving from a private school to a state school was preferable to the children’s home being sold.

Common approaches to payment

1. Both parents contribute — In many cases, both parents share the cost with an arrangement based on each of their incomes
2. One parent pays. Sometimes one parent will take full responsibility for fees, particularly if they have a significantly higher income
3. Financial assistance such as bursaries and scholarships. If neither parent can afford fees, it may be possible for them to seek financial assistance — potentially ensuring the child’s education continues uninterrupted

Conclusion

Deciding who pays the school fees is complex and calls for careful consideration of legal, financial and personal factors of each individual case.

It is important in any separation to take early advice from a specialist family lawyer as early as possible. Court should be a last resort, and — ideally — you and your ex should consider traditional negotiation or mediation before raising court proceedings, simply because these alternatives tend to be more time and cost-effective.

Our family team can support you through this whole process and, if you and your ex-partner can’t reach an agreement, we’ll be on hand throughout the court process.

If you found this article useful, our family law team has published?other insight blog posts?in our news and views section.