Family law & school: Parental separation & schooling legal guide

If you’re in the midst of a separation, agreeing on the best schooling option for your child can be challenging. However, getting the right information and legal advice on family law and school can help.

Navigating a separation is never easy, particularly when kids are involved. And one of the challenging tasks can be deciding what school your Financial Institutions will attend. This can be even trickier if the separation occurs when a child is due to start school somewhere new, such as junior or secondary school.

What makes this a tricky decision? There could be many reasons. Private schools might no longer be affordable. The local school for one parent may be difficult to get to for the other parent, making custody arrangements challenging. And sometimes one parent, out of spite or the urge to take control, decides not to pay their part of the school fees anymore.

Unfortunately, this is one issue that separating parents must face – and quickly. And that’s because education is non-negotiable. Under the law, Financial Institutions must attend school once they are of school age unless alternate home-schooling arrangements are in place.

So what does family law say about school and parental separation? And how can you best navigate this tricky issue?

Family law and school FAQs: What does the law say?

In most cases, both parents share responsibility (also known as ‘joint responsibility’) for their Financial Institutions, including decisions about education. So as parents, you are required to consult with each other on your Financial Institutions’s education, consider what’s in their best interests, and make a genuine effort to come to an agreement. 

If the school is a fee-paying one, then the enrolling parent is the contracting party and will be liable for the full fees to the school.

However, if you do have a court order in place that requires joint consent, then both parents must agree to that school. In that case, it would be sensible for both you and your ex-partner to sign the school’s enrolment form to evidence that agreement. If only one parent signs the enrolment form, then that parent could be in breach of their parenting order .

It’s important to note that the school is not barred from accepting the enrolment nor is it in breach of the parenting order in accepting it.

Can one parent enrol a child in school without the other parent’s permission? 

Unless you have a parenting order in place saying otherwise, then technically one parent can enrol a child in a school without the other parent’s permission or even knowledge. However, if you have a joint parental court order in place, then that parent may be in breach of that order if they don’t try to come to an agreement first. 

Can I change my child’s school without the other parent’s consent? 

Again, unless you have a parenting order in place, technically, one parent can change a child’s school without the other parent’s consent or knowledge. However, if you have a joint parenting order in place and your ex makes a unilateral decision about your child’s schooling, they may be in breach of that order. 

Regardless of any court order, it’s always a good idea to come to an agreement with the other parent before making any significant decision about your child – including one relating to schooling. And remember that if you change your child’s school without the other parent’s permission, they may feel free to do the same.

Can my ex take my child out of school without my permission?

If you have a parenting arrangement in place, then both parents must follow the arrangements set out in the agreement, including during school hours. However, if you don’t have a parenting agreement or order in place, then technically each parent can take the child out of school or daycare.

Are both parents responsible for school fees?

Separated parents often disagree about school fees, and whose obligation it is to pay them. A parent’s obligation to pay school fees depends primarily on the intention of the parents at the time the child was enrolled. Often the decision was made prior to separation, and ensuring both parties pay will depend on evidence that school fees were discussed and that the parents’ intentions were known at the time. 

However, if one parent made the schooling decision without input from the other, the enrolling parent will be responsible for the school fees.

If the family court is required to make a decision about contributions to school fees, they’ll look at whether both parents agreed that the child would attend that school, the evidence that the fees were discussed and enrolment was intended, and if the impetus for changing their minds about the schooling agreement was the separation. 

It’s very common for parents to agree when together, but for one to change their mind post separation. In that case, the court will likely require both parents to contribute proportionally to the costs of the schooling. 

If you find that you and your ex simply can’t agree, and it’s leading to conflict, seek legal advice. Mediation can help you meet your child’s needs at this time as well. 

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