Private Education, Priorities And Pressure 

Published on 02 November, 2021 | Laura Guillon

Divorce is about more than simply obtaining the decrees – nisi and then absolute – which bring marriage to a legal close.

Another very essential part of the process is ensuring that joint marital assets are divided fairly.

The most recent figures published by the Office for National Statistics (ONS) show that there were 107,599 divorces in 2019 (https://www.ons.gov.uk/peoplepopulationandcommunity/birthsdeathsandmarriages/divorce/bulletins/divorcesinenglandandwales/2019).

During that year, 40 per cent of those involved something known as a financial remedy order – determining such things as the terms of ‘clean break’ settlement, the payment of spousal maintenance or the details of how property or pensions might be split – being put in place.

Arguably the abiding principle in these sorts of discussions is the idea of meeting the financial needs of the less well-off spouse.

Even so, establishing what those needs are can be a source of friction, especially when there are additional family needs – those of children – to take into account.

As I’ve been telling Catherine Baksi of The Times, some spouses have tried to apply pressure on their former husbands or wives to reduce their demands for financial support by indicating that they may impact the sums available to pay for their children’s education (https://www.thetimes.co.uk/article/f9921cf0-3737-11ec-b83a-bd8490b9f48d?shareToken=bc974408f52bd34134ef29ba7657448f).

Children receiving private education make up roughly seven per cent of the entire school population in England (https://www.isc.co.uk/research/).

However, when it comes to weighing up the issue of needs in any financial settlement at the end of a divorce, courts do not tend to regard private school fees as an essential expense.

That has led some wealthier spouses seeking to minimise the amount which they will have to make in spousal maintenance (also known as ‘periodical payments’) to try and make their exes choose between financial support for themselves or their children’s education.

It is a problem which has occurred in a number of cases that I and my colleagues at Hall Brown have had to deal with.

Because family courts try to achieve ‘clean break’ settlements wherever possible, the issue of school fees can be one of the few remaining financial ties – and, therefore, ongoing areas of disagreement – between divorcing parents.

In addition, given the length of a child’s education – potentially through preparatory, primary and secondary schools – arguments about fees can surface long after their parents’ divorces are completed.

There are no statistics available on this particular area of family law to clarify exactly how common these difficulties are.

They are usually dealt with under something known as a Specific Issue Order (SIOs), a court order which also deals with, for instance, where, when and with whom a child goes on holiday and how much time it spends with either parent.

Data issued by the Ministry of Justice suggest that these different types of rows are becoming more frequent.

The number of applications for SIOs in 2020 was 74 per cent higher than in 2015 (https://www.gov.uk/government/statistics/family-court-statistics-quarterly-january-to-march-2021/family-court-statistics-quarterly-january-to-march-2021).

Whatever the frequency, I always recommend that parents resist the temptation to use the question of school fees to score points.

More than a case of one divorced spouse exerting pressure on another, there is a real danger of these disputes not only affecting a child’s educational prospects but causing damage to the relationship which lasts long after sons and daughters have left school for the last time.