The cost of living is rising and purse strings are tightening. The population is trying to save money and luxuries which were previously enjoyed may now be cut from the list of monthly expenditure.
As if things weren't difficult enough, a family breakdown creates further deficits in household finances – families no longer have two incomes on which to depend, one party may have to reduce their working hours (and therefore their salary) to undertake additional childcare duties and clearly, running two households is more expensive than running one. Spending will likely need to be reviewed and any unnecessary expenditure shelved for the foreseeable future. This could lead to disagreement over whether to continue paying private school fees or how the liability for those fees is divided between parents.
Below, we consider how the matter of school fees will generally be dealt in Scotland, together with the remedies available to parties in the event of a dispute.
Minute of Agreement
Following separation, individuals (whether spouses, cohabitants or civil partners) are encouraged by solicitors to enter into a Minute of Agreement regulating the financial issues arising from their separation. The Agreement can also cover child related matters if there are young children from the relationship/marriage/partnership. This may include contact arrangements, consent for foreign travel, child maintenance and payment of school fees / extra-curricular activities. Once signed by both parties, the Agreement is legally binding and once registered, is enforceable.
If parents choose to send their child(ren) to a fee-paying school and for whatever reason no Minute of Agreement has been entered into, it is likely the school will want a signed 'school enrolment' agreement regulating payment. More about them shortly…
Remedies – what if one party doesn't pay their share?
Frustratingly, even where you have entered into a legally binding Agreement, you may still find yourself in circumstances where the other party is not adhering to their obligations. What can you do?
In the context of school fees, there are two likely scenarios in terms of what has been agreed:-
Joint and Several Liability
Often, school enrolment agreements will refer to respective parents or guardians having joint and several liability for fees. Generally, where two (or more) parties agree to be jointly and severally liable in respect of a particular obligation, each party is (i) jointly liable for performance together with the other parties and (ii) individually liable for the obligation as a whole. The default position in this context would be that each party pays a 50% share of the total school fees due, but the school would be entitled to pursue either parent for all of the fees.
Parties could agree to split the liability for school fees in any way they like. For example, parties may agree that Parent 1 will pay a 60% share of the total school fees due and Parent 2 will pay 40%, perhaps because Parent 2 is on a lower income or has a greater share of the overall childcare costs.
Regardless of which of these scenarios is agreed, where one party fails to pay their share, forcing the other party to pay more than their share, the over-paying party will have a right of relief against the under-paying party.
In order to recover this overpayment, Parent 2 may require to raise a court action against Parent 1 for payment of these sums. It must be noted that the ability of Parent 2 to seek a right of relief against Parent 1 requires that there had been no agreed deviation from the default 50/50 split. If, for example, the separation agreement allocated liability for school fees equally between the parties and six months later, a variation to the agreement was reached whereby Parent 1 was to pay 15% of the fees and Parent 2 was to pay 85% of the fees, Parent 2 would not have any right of relief against Parent 1, provided that Parent 1 continued to make payment of their 15% share.
Generally, if a party fails to adhere to their financial obligations under a written Agreement, there will be consequences.
Action for aliment
Parents have an obligation to aliment (provide financial support) for their child. If a parent fails to make payment of school fees, the other parent could raise an action for aliment under the Family Law (Scotland) Act 1985 (see sections 1 and 3) seeking aliment towards educational expenses.
Extra consideration should be given when a third party (such as a grandparent) is involved in making payment of school fees. Generally, any agreement will be between Parent 1 and Parent 2 only. An agreement can only be enforced against those who 'sign up' to the Agreement – it is not possible to impose obligations on a third party.
Weigh it up
When deciding whether to take action to recover any sums due in relation to the non-payment of school fees, thought should be given to the value of the sums in dispute and the likelihood of success. The costs involved with court action can accrue rapidly (particularly where one or both parties are legally represented), quickly outweighing the amount to be recovered.
Court should be a last resort and parties should consider traditional negotiation or arbitration before rushing to raise court proceedings. These alternatives are (generally) faster and less expensive.