One of the most contentious issues in high net worth (HNW) divorce cases is the continuing payment of school fees. Often this is because when a couple divorces, the income of both parties reduces, making it much more difficult to cover private school fees. In the recent case of de Renner v Galbraith-Marten [2022] EWFC 118, The Hon. Mr Justice Mostyn ruled that a King’s Council did not have to pay for his daughter to attend private school. The father’s other two children attended state school, as he himself had done as a child, and the court accepted that the father could not afford private school fees for all three children. Furthermore, the father had never intended for any of his children to be educated privately.

The Hon. Mr Justice Mostyn concluded:

“The mother has emphasised to me repeatedly that the father was deprived of parental responsibility in Australia (but not here) and that accordingly, in her opinion, hers is the only parental voice that should be heard on the question of education. The father should have no say or other input, according to her, other than to pay. In my judgment to force him to do so would be a gross injustice which I am not prepared to contemplate.”

The issue of who pays for private school fees following a divorce is a serious one when considering the welfare of the child. For example, if they are already in a private school, being removed and enrolled in a state school adds to the instability already generated by the divorce itself. On the other hand, the older and more settled the child is at their private school, the greater the scope for potential harm.

Is private schooling a ‘need’ in terms of a divorce financial settlement?

As we have previously mentioned, the court must consider all the factors under section 25 of the Matrimonial Causes Act 1973 when deciding the outcome in a financial remedy application in the event of a divorce or dissolution. These factors are:

The resources available to the parties, both capital and income, being both extant or reasonably foreseeable;

The financial needs of each party, considering the needs of dependent children and any disabilities; The duration of the marriage and the age of the parties;
The conduct of the parties (but only in exceptional circumstances);
The standard of living enjoyed by the parties;

Any benefit either party will lose as a result of the divorce; and
The contributions of each party to the marriage (both financial and non-financial).

Although, in an ideal world, it would preferable to be able to say more categorically whether or not private schooling is viewed by the court as a ‘need’, it is simply not possible to do so. This is because the court will look at all the facts relating to the matter, for example, the financial situation of both parties now and in the future, both in terms of income and capital, the intentions of both parents regarding private education and the age of the child (or children) and how settled they are at their existing school.

How can I ensure that my ex-spouse pays all or part of the private school fees?

If possible, it is always preferable for couples to work out a financial settlement following divorce between themselves. This can be done through negotiation between themselves or with the assistance of solicitors, and can be assisted alongside by the process of mediation. This can be much quicker and cheaper than going to court. Another great advantage of keeping the matter between the parties and out of court is that alternative dispute resolution methods are confidential, thereby safeguarding your child’s privacy.

If your child (or children) are old enough, you may wish to consider child-inclusive mediation. This would provide the children with the opportunity to attend mediation to express their own views on their schooling, and how any

changes, either to fee- or nonfee-paying education, might affect them. Whilst their comments and views would not be binding on the parents following those discussions, it can be a powerful indicator to parents as to their children’s wishes and feelings in the context of the matter as a whole, which can sometimes crack the case one way or another.

As members of Resolution, we are committed to helping HNW couples resolve their family law disputes in a respectful, non-confrontational manner. Mediation and other alternative dispute resolution methods provide a way to communicate effectively on important matters, such as your child’s education, and reach an agreement that is beneficial for the entire family in the midst of what is often a very difficult period in the family’s life.

Once an agreement is reached, our family law solicitors can present it to the court and have what you have agreed made legally binding in the form of a Consent Order.

If you require advice on paying school fees following a divorce, please do not hesitate to contact us.

Edwards Family Law is a niche London-based firm specialising in high-net-worth divorce, separation, and international family law matters. To find out more about divorce and financial settlements, please telephone +44 (0)20 3 983 1818 or email contact@edwardsfamilylaw.co.uk. All enquiries are treated in the strictest confidence.