Given the increased university fees and the interest charges on student loans, which will increase again from September this year, the provision of financial support for higher education is a hot topic for divorcing parents of teenage children.
A divorce court has the power to make orders for the support of children who are over 18 provided they are in full time education. This comes as a surprise to some parents who think that their liability ends at 18. If an application is made for support before that child is 18 it would usually be made by the parent with whom they live (although the child has the power to make an application from the age of 16). If the child is already 18, unless that child is disabled, the application must be made by the child themselves against the parent they are seeking financial provision from. In practice therefore it is very wise for the application for funding to be made at least a year before the child’s 18th birthday to allow for court delays in concluding the application because the adult child will understandably be very reluctant to bring proceedings against their parent for support.
It is also important to note that a divorce court is unlikely to be prepared to make an order for financial provision (if disputed) when the children are young and it is not yet clear that they will be proceeding to higher education. The court only has the power to make an order if the child “is or will be at an educational establishment” and that is clearly not possible to establish where a child is not yet even at GCSE stage. Timing of the application is therefore important as it should neither be too early or too late.
The amount of financial provision is also a complicated and discretionary area and the approach of different judges may vary. The vast majority of parents agree the support without any dispute or need for legal advice. If parents have similar financial circumstances they are likely to agree to share the costs in any event – if one parent earns a good deal more they are likely to be required to pay more. If a wealthy parent refuses to make any financial provision the court may well order him to pay the whole of a child’s education costs including university tuition fees instead of taking out a loan with interest, and an allowance for housing and living costs. In reality this would cost a minimum of £20k a year and probably more. In more modest disputed situations a parent is likely to be ordered to contribute to expenses not covered by available student loans – the situation is very discretionary.
Finally the current law which dates back to 1973 has not really kept pace with the prevalence of gap years, which in those days were rare. There is no provision in the current law to order a parent to fund a gap year unless this funding is agreed by the parents or the gap year is at an educational establishment (that doesn’t include Thailand!)
Divorcing parents of teenage children considering private education would be well advised to seek legal advice well in advance of application for their course – the end of GCSE’s if not slightly earlier would usually be appropriate.