Private school fees after divorce can become a serious point of conflict when one parent can no longer afford the fees, disputes the original school choice, or wants the child moved to a less expensive school.

The starting point is usually the existing court order or settlement agreement. A parent should not stop paying, remove the child from school, or impose a new schooling arrangement without first understanding what that order requires and how parental responsibilities and rights are regulated.

School choice and liability for fees are related, but legally distinct. The dispute may involve a divorce order, a maintenance order, a parenting plan, the Children’s Act, the Maintenance Act and the private school’s enrolment contract.

Private school fees after divorce start with the existing order

The wording of the divorce or maintenance order matters. Some orders name a particular school or expressly require private schooling. Others refer only to “school fees” or “educational expenses”.

A clause referring to school fees is not necessarily limited to public-school fees. Its meaning depends on the words used, the agreement as a whole, the circumstances in which it was concluded and the schooling arrangement that existed at the time.

Relevant questions include:

Did the child attend a private school when the agreement was signed?
Does the order name the school or refer expressly to private education?
Does it cover only tuition, or also levies, uniforms, devices, tours and extracurricular activities?
Does it allocate the fees in fixed shares or according to the parents’ respective means?
Does it regulate annual increases or a future change of school?

A dispute about interpretation should be addressed through proper legal advice and, where necessary, an appropriate court process. A parent should not adopt the interpretation that best suits that parent’s immediate financial position and act on it unilaterally.

Who decides whether a child changes school after divorce?

A decision to change school after divorce concerns the exercise of parental responsibilities and rights. The Children’s Act requires the child’s best interests to remain central.

Co-holders of parental responsibilities and rights may generally exercise those rights independently, subject to the Children’s Act, another law and any applicable court order. This means that the law does not impose a universal rule requiring both parents’ written consent for every schooling decision.

However, a material school change may affect the child’s education, routine, transport, contact arrangements and relationship with both parents. The views and wishes of the other co-holder must receive due consideration where the decision is likely to affect that person’s exercise of parental responsibilities and rights materially.

The child’s views must also be considered in an age-appropriate manner, having regard to the child’s age, maturity and stage of development.

If the parenting plan or court order expressly regulates school selection, its terms must be followed. If the parents cannot agree, the appropriate court may need to determine the dispute.

What if private-school fees are no longer affordable?

The maintenance court may substitute or discharge an existing maintenance order where good cause is established. The particular procedure and appropriate court depend on the terms and source of the existing order. The Department of Justice and Constitutional Development publishes the applicable maintenance application forms, including the form for substitution or discharge of an existing maintenance order.

A genuine deterioration in a parent’s financial position may provide grounds to seek a variation of the existing maintenance arrangement. It does not, by itself, suspend the current obligation.

A parent seeking to vary a school fee order should be prepared to provide full and credible financial disclosure. This ordinarily includes:

recent salary slips and tax returns;
bank and investment statements;
evidence of retrenchment, unemployment, reduced earnings or business losses;
a schedule of reasonable monthly income and expenditure;
details of assets, liabilities, savings and other financial resources;
evidence of the financial position when the existing order was made; and
details of realistic alternative schools, including fees, availability, transport and educational suitability.

A voluntary reduction in income or a general statement that the fees are too high may carry little weight without reliable supporting evidence.

Why a parent should not simply stop paying

A divorce school fees court order remains binding until it is lawfully varied, discharged or set aside. Applying for a variation does not ordinarily suspend the existing obligation while the application is pending.

If a parent refuses school fees without obtaining appropriate relief, arrears may accumulate. The other parent may consider enforcement of the order. Depending on the order and the circumstances, enforcement may include execution against property, attachment of earnings or attachment of debts.

Contempt proceedings require more than proof of non-payment. The applicable requirements, including wilful and mala fide non-compliance, must be established. Genuine inability to pay and deliberate refusal to comply are not the same.

The practical course is to obtain advice promptly, disclose the financial position fully, propose realistic alternatives and institute the correct variation process before the arrears become unmanageable.

The school contract and the court order create different obligations

Private school fees and maintenance may involve two separate legal relationships.

The first is the contractual relationship with the school. The enrolment agreement will ordinarily identify the contracting party and regulate payment, notice, withdrawal and other obligations.

The second is the obligation between the parents. A divorce or maintenance order may require one parent to pay all or part of the child’s educational expenses.

For example, one parent may have signed the enrolment agreement and be contractually liable to the school. The divorce order may nevertheless require the other parent to pay the fees. If payment is not made, the school’s contractual claim and the first parent’s claim under the court order must be considered separately.

The position at a public fee-paying school is governed by a different statutory regime. Public-school fee liability should not be applied to a private school without examining the private school’s contract.

How a court may assess a disputed school change

A cheaper school is not necessarily an appropriate school. Cost is relevant, but it is one part of the assessment.

Depending on the facts, a court may consider:

the child’s age, maturity and views;
academic progress and educational needs;
emotional and social ties to the existing school;
the likely effect of disrupting established routines;
special educational, therapeutic or developmental support;
the suitability and availability of the proposed alternative;
transport, residence and contact arrangements;
the parents’ financial positions and respective means; and
the terms of the existing parenting plan or court order.

An educational psychologist or another suitably qualified professional may assist where the proposed change raises material educational or developmental concerns. Expert evidence is not required in every dispute, and its value depends on the issues that require determination.

Drafting school-fee clauses that reduce future disputes

A settlement should define educational expenses carefully. A bare reference to “school fees” can create uncertainty years later.

A properly considered clause may address:

whether private schooling is contemplated;
whether a particular school is named;
tuition, deposits, registration fees and levies;
uniforms, textbooks, stationery and devices;
school tours, additional tuition and extracurricular activities;
boarding and transport costs;
the proportion payable by each parent;
payment directly to the school or reimbursement against proof;
annual increases;
the process for proposing a school change;
financial disclosure following a material change in circumstances; and
mediation or another agreed dispute-resolution process, without preventing urgent court relief where necessary.

The clause should also make clear that an existing obligation remains enforceable unless it is varied through agreement formalised where necessary, or by a competent court.

Documents to take to an initial consultation

A parent dealing with private school fees after divorce should gather:

the divorce order and settlement agreement;
the parenting plan and later maintenance orders;
the school enrolment contract;
fee statements, invoices and proof of payment;
details of arrears;
correspondence about school choice or payment;
financial records where affordability is disputed;
information about proposed alternative schools; and
relevant school reports or professional assessments.

These documents help determine what the current order requires, who is liable to the school, whether circumstances have materially changed and whether a proposed school change serves the child’s best interests.

Frequently asked questions

Can my ex stop paying private school fees after divorce?

A parent should not disregard an existing court order. If the fees have become unaffordable, the appropriate course may be to seek variation or substitution of the order and provide full evidence of the changed financial position.

Can one parent change the child’s school after divorce?

It depends on the existing order, parenting plan, parental responsibilities and rights, and the effect of the decision on the child and the other parent. The law does not require joint written consent for every school decision, but unilateral action may be inappropriate where the change has significant consequences or conflicts with an order.

Does “school fees” include private-school fees?

It may. The wording, context, purpose and schooling arrangement that existed when the agreement was concluded must be considered.

Can private school fees maintenance be varied?

Yes, a maintenance order may be substituted or discharged where good cause is established. A material and genuine change in financial circumstances must be supported by credible evidence.

Do I owe the school if I did not sign the enrolment agreement?

That depends on the contract and any other applicable legal basis. Liability to the school must be distinguished from an obligation owed to the other parent under a divorce or maintenance order.

What can I do if the other parent refuses school fees?

Obtain advice on the wording and enforceability of the existing order. Available remedies depend on the order, the arrears, the evidence and the appropriate court process.

Get advice before changing the arrangement

School-fee disputes often become more difficult when a parent acts first and seeks legal advice afterwards. A timely review of the court order, enrolment agreement, financial records and schooling alternatives can identify whether the issue requires negotiation, mediation, variation or enforcement.

Vermeulen Attorneys can advise on private school fees after divorce, proposed school changes, maintenance variations and the enforcement of existing family-law orders.