Can I avoid disruption to my child’s education?

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My husband and I separated a few years ago. A key aspect of our divorce was agreeing how the education for our twin girls would be paid for. A school fees order was set up, to which my ex-husband contributes significantly, but he claims that with 20 per cent VAT, which the independent school has said will be added, he cannot afford his share. I am desperate to avoid disruption to my children’s education. Is there anything I can do?

Lisa Greggains, senior associate at law firm JMW Solicitors in London, says decisions around a child’s education can be some of the most difficult for separated parents and require considerations of what is best for their children as well as pragmatism.

A school fees order sets out who should pay for the children’s school fees and are used in courts across the UK. These orders are frequently made when a child is already attending a fee-paying school when their parents separate, or it was always agreed they would attend, and the fees remain affordable on separation. However, annual fee increases above the rate of inflation — and now VAT being added to those fees — has made the prospect of a private education increasingly unaffordable for many families.

The decision over which school or schools your children attend will be one for both you and your husband, given you share parental responsibility for your children. If the choice of school cannot be agreed, a court will decide based on what is in the child’s best interests. One parent cannot unilaterally decide to change a child’s school if both parents have parental responsibility. The issue of who should pay the fees or in what proportion is a separate consideration.

In circumstances in which one parent considers ongoing school fees unaffordable and there is an existing school fees order, the first step is to attempt to reach a constructive solution out of court. There are various ways of doing so, including through mediation, arbitration or an early neutral evaluation. 

If a solution cannot be found this way, a court application may be necessary. If a parent stops paying the school fees they have been ordered to pay, an application for enforcement of the existing school fees order may be appropriate. It is possible that your husband may also make a variation application to change the terms of the existing school fees order. If he is suggesting the children move schools, perhaps to a state school or less expensive fee-paying school, he would need to make a court application for a specific issue order in the absence of agreement between you. 

The cost of court proceedings can quickly become disproportionate, so it is important to ensure that out-of-court dispute resolution methods have been explored first. The courts increasingly expect this to happen, to reduce the burden on an already overstretched system, but also to ensure that disputes can be resolved as quickly and with as little conflict as possible, so co-parenting relationships do not break down. Seeking advice from a family lawyer early in the process can often help parents reach a swift resolution, avoiding unnecessary disruption to their children’s education. 

Should I buy a commonhold flat?

I’m saving to buy my first property. I live in London, can only afford to buy a flat and want to know what the difference is between commonhold and leasehold in relation to property? Should I buy a commonhold flat if I find one I can afford? 

Erin Stephenson, associate in the residential estates team at Cripps, a law firm, says before discussing the difference between leasehold and commonhold, it is important to give some background on the latter and how it sits in the current market. 

In 1987, it was recommended by the Law Commission that commonhold be adopted in England and Wales. This was based on similar jurisdictions — such as Australia and New Zealand — operating the system successfully for many years.

It was formally introduced in 2004. Take up since, however, has been very low. It is difficult to pinpoint why, but it may be due to the reluctance of lenders to venture into what is still largely an unknown. The Law Commission has made a concerted effort to get to the bottom of the industry’s reticence to embrace commonhold and there have been various consultations. While Scotland does have some leasehold properties, they are even less common than in England and Wales.

Leasehold is, of course, a long-established tenure of property ownership. It allows the homeowner to own their property for the length of time set out in their lease. These often require the leaseholder to pay ground rents and service charges to freeholders, who own the building or land on which the property is built. We have seen several reforms to leasehold over the years, including the introduction of the “right of first refusal” in instances where landlords wish to sell their interests, as well as the compulsory ability for tenants to extend their leases or acquire their freehold.

Commonhold aims to address some common problems associated with leasehold property structures, by combining the security associated with the concept of freehold ownership with a shared management element which applies to each owner of a unit in the building.

It is a form of freehold estate. Commonhold consists of separate commonhold units and common parts (shared facilities such as the roof, stairs and landings) which means that the unit holders have two distinct interests — a direct interest in their own unit and also membership in what is known as a commonhold association, which owns and manages the common parts of the building. 

Commonhold is also designed to deal with some drawbacks associated with leasehold, including the reduction in lease value as the years remaining decrease, as well as tenants depending on their landlord or managing agents with regard to the quality of maintenance and upkeep. 

In short, there are benefits when it comes to purchasing commonhold properties. They are still, however, rare in the general market and leasehold remains the dominant ownership structure for flats.

The opinions in this column are intended for general information purposes only and should not be used as a substitute for professional advice. The Financial Times Ltd and the authors are not responsible for any direct or indirect result arising from any reliance placed on replies, including any loss, and exclude liability to the full extent.

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