If your children are attending privately paying schools, and you are negotiating a financial settlement on divorce, there will need to be a decision reached on how these fees are going to be paid.
In a recent financial case before the High Court*, two children attended fee paying schools, costing a total of £27,828 per annum. In 2011, the court had approved an agreement reached between the parents. This provided that:
• The Husband was to pay spousal maintenance of £500 per month until their youngest children reached 18 or finished secondary school;
• The Husband would pay child maintenance in line with the Child Support Act formula
• The Husband would pay 20% of his bonus to the Wife
• The Husband would pay SD’s school fees and contribute 25% of his bonus towards ED’s school fees.
Two years after this order was approved by the court, the Husband applied to the court for its terms to be varied. He no longer wanted to be paying as much as he had agreed to pay two years earlier. He asked the court to remove the need to pay spousal maintenance payments and asked for the Wife to responsible for the ED’s school fees.
At this stage the Husband was earning £195,000 per year in salary and bonus, and the Wife was earning £18,000 per year.
The judge hearing that case decided that the Wife’s right to spousal maintenance should immediately terminate and that she should also become responsible for a greater portion of the school fees. The Wife appealed the decision to a higher court.
On appeal the court found that “Both parties want their children to attend private school and both have to make sacrifices as a result.” The sacrifices to be made were:
• the Husband would need to pay the school fees of both children in full but
• the Wife would no longer receive spousal maintenance.
A court will aim to terminate spousal maintenance, unless the recipient cannot adjust without undue hardship. The Wife in this case argued that she could lose her job or be unable to work and that she needed a safety net in the form of the right to apply for spousal maintenance. The court’s response to this was “There are so many imponderables in this life. It is impossible to operate a crystal ball and be able to determine what may possibly happen at some point in the next eight or so years….I remind myself that there can be some hardship, albeit not undue hardship.” Consequently it was decided that the Wife’s spousal maintenance would be dismissed.
* WD v HD [2015] EWHC 1547 (Fam) (28 April 2015)
School Rugby by Phillip Capper
