Parents must carefully consider their ongoing responsibility for school fees after divorce.

The cost of private secondary school fees – along with those at the primary schools that act as feeders for them – can cause complications even in intact relationships. When couples are separating or divorced, the question of who is responsible for what percentage of school fees can become significantly complex.

There are clearly numerous potential scenarios that can impact upon separated parents’ responsibilities for the ongoing payment of school fees.  Some of these include:

  • a child may not have commenced secondary school at the time of the relationship breakdown, but plans may have been put in place (including forms signed and registration fees paid) to send that child or those children to a particular private school;
  • one or more children may already be at a private school, while others may have yet to enter;
  • at the time of relationship breakdown, the parents may not yet have agreed upon which school their children should attend; and
  • parents’ capacity to pay for secondary school fees may change significantly after a relationship breakdown.

Regardless of the scenario, some general principles come into play whenever disputes arise between parents about their legal obligation to contribute financially to their children’s education.

Firstly, capacity to pay is taken into account; there can obviously be significant economic and social upheavals associated with relationship breakdown. Along with the loss of the family home and, often, changes in postcode for parents and children, alterations to children’s school situations can be a major disruption for all concerned.

When parents are under one roof, school fee obligations may be almost beyond their capacity to pay, but they somehow make ends meet. Separation is often, however, the tipping point, and children’s school arrangements have to change to reflect parents’ new economic situations.

As mentioned above, numerous scenarios are possible post separation. A common scenario is that a child was destined to attend a certain school before the separation. Now one parent may be claiming that the other is refusing to honour their agreement, or is stating that they cannot afford to pay following the relationship ending.

It is important to realise that, even if a parent without primary care has capacity to pay for school fees, it doesn’t necessarily follow that responsibility will be imposed upon them. If it is found, however, that parents have the capacity to pay and they agreed to send their children to a private school, the court may order that the children attend that school and for one party to make payment of the fees or there be a sharing of the fees in on a percentage basis.

The court looks at the facts: can parents pay and, importantly when it comes to kids who have not yet been enrolled, what was the parents’ agreement? Proof of that agreement obviously becomes vital in this situation and evidence of it can include signed enrolment or application forms, and receipts for fees paid.

Sometimes parents haven’t agreed before separation about what school their child should attend. But there may be a strong reason for a child to attend a particular private school, including special needs or the presence of siblings. In that situation, the court could order that the child attends that school, again dependent upon parents’ capacity to pay.

The court generally works to ensure the least impact upon children. If children are already in school, with supportive peer networks and thriving in their education, that factor is of utmost consideration. The court is also keen to ensure children from the one family stay together in school.

If one child is already at a private school and another was set to join him or her, then the court will be keen for that to happen. It all comes down again to financial capacity, and the court, as a general concept, prefers to have siblings attending the same school institution.

One of the most difficult circumstances is when one parent has decided upon one school and the other parent a different school. This disagreement can come down to factors such as which school parents attended, which schools they’ve researched the most and are passionate about, and other cultural and religious factors.

Separation and divorce have many unforeseen ramifications and the obligation to pay school fees is a major one. There are many competing factors, emotions can run high and children’s futures are at stake. The issue should be properly considered when negotiating an overall property settlement and if possible, covered off in a Binding Child Support Agreement. 

For advice or further information regarding Family Law, please contact: 

Lisa Hunt                         
Principal
M  0407 616 729
T   03 5226 8584
E   lhunt@ha.legal

or

Kylie Schulberg
Senior Associate
T 03 5225 5223
E  kschulberg@ha.legal