Who must pay school fees on divorce?

One of the issues raised frequently in Legal Talk by divorced parents at public schools is the issue of the effect of a divorce order, where there is a court order ordering the one parent to be responsible for school fees. So when the school asks the parent who is not the party responsible for the fees in terms of the order to make payment, they say no the court has ordered the other parent to be responsible and that is binding on the school.

The divorce order is not binding on third parties but only between the divorcing parties, unless such third party have been cited in the legal proceedings . The legal authority upon which is relied on is the Supreme Court of Appeal decision of OLD MUTUAL LIFE ASSURANCE CO (SA) LTD AND ANOTHER v SWEMMER 2004 (5) SA 373 (SCA), which at 24 the court held that , “As the appellants were not parties to the proceedings in which this order was made, the order was a nullity as far as they were concerned and they could legitimately disregard it without having it set aside.”

Another fact is the South African Schools Act’s wide definition of parent in terms of Section 1 is designed to ensure that public schools do not become embroiled in disputes between feuding parents and that they both is jointly and severally liable for the schools fees. In this regard refer to the Supreme Court of Appeal authority of FISH HOEK PRIMARY SCHOOL v GW 2010 (2) SA 141 (SCA) in which the court held at 14:

“ Moreover, an interpretation that burdens both parents with responsibility for school fees is consistent with the injunction in s 28(2) of the Constitution that ‘a child’s best interests are of paramount importance in every matter concerning the child’. It unquestionably is in the best interests of a child that a non-custodian parent, who is unwilling, yet has the means, to pay his child’s school fees, should be made to do so, if necessary by the injunction of an order of a competent court.

Were that not to be so, the custodian parent would solely be saddled with that responsibility. And whilst a custodian parent, if she has paid more than her pro rata share towards the child’s support, may in law be entitled to recover the excess from the non-custodian parent, the reality is that her right to recover may for all practical purposes prove to be illusory.”

Further, the sad truth is that many custodian parents are simply unable to pay or have been exempt from paying due to poverty. Were the school not to have the right to recover school fees from the non-custodian parent in those circumstances, it will either have to shoulder that loss or mulct other parents with additional charges. In either event it would be acting to the detriment of other learners.