When parents divorce, the settlement agreement often addresses how school fees are to be paid. However, despite those contractual arrangements, schools frequently encounter situations where the agreed-upon payer defaults. Questions then arise about whom the school should pursue for payment and how the law deals with this issue.
Statutory responsibility vs. settlement agreements
The primary guiding principle is that both parents remain legally responsible for their children’s school fees, regardless of what the divorce settlement agreement states. This principle is rooted in the Schools Act, which emphasises the shared obligation of parents to ensure that education costs are covered.
A divorce settlement might indicate that Parent A takes sole responsibility for school fees, but if Parent A fails to pay, the school is entitled to approach Parent B for the outstanding amounts. A settlement agreement does not override the statutory obligations placed on parents; it merely represents a contractual arrangement between the two ex-spouses.
The practical impact on schools
1. Right to claim from either parent
Because both parents are legally responsible, the school can initiate legal proceedings or collections against either or both. This approach protects the school’s right to recover fees, ensuring that non-payment is not easily excused by referencing the settlement agreement.
2. Legal proceedings
Where payment remains outstanding, schools typically begin by sending demand letters to both parents. If no resolution is reached, the school can escalate to litigation, naming both parents as defendants.
3. Parent vs. parent: The aftermath
Once the school has reclaimed the fees, the divorced parents might then sort out any violation of the original settlement agreement among themselves. For instance, if Parent A failed to pay as agreed, Parent B - who then had to settle the account - may seek reimbursement from Parent A. This does not affect the school’s ability to recover fees directly from both parents.
Shani Van Niekerk 1 Dec 2022
Key takeaways
- The Schools Act places the responsibility for school fees on both parents, even after divorce.
- A divorce settlement cannot override the statutory duty each parent owes to the school.
- Practical steps to ensure fees are collected may involve legal proceedings against both parents.
- The school’s primary concern is securing payment; divorced parents can resolve breaches of their settlement agreement separately.
Divorce settlements may allocate school fee obligations to a specific parent, but as a matter of law, each parent remains fully responsible toward the school.
It is essential for both parents to be aware of this shared obligation and for schools to understand that they have every right to pursue either parent - ensuring that the child’s education and the school’s financial stability are not compromised.
