Children in university: how it affects child maintenance

The general rule is that child maintenance payments (as dealt with by the Child Maintenance Service), will cease when the child is aged 16 or when they finish full time secondary education.  This means that there is no automatic right under the Child Maintenance Service for ongoing child maintenance for children once they finish secondary school. Of course, child maintenance will continue for any younger children, but for many parents, the reduction of one child’s maintenance can have a significant impact on the family finances.  

Some parents may have reached a consensus in their divorce settlement provisions for one parent to provide child maintenance throughout university, often in recognition of the fact that children spend time at home during holidays. This would be set out within the financial consent order being maintenance to the age of 18 or “full time tertiary education, limited to the first degree whichever shall be the last to occur”.

Sometimes an order also expressly includes a gap year. If an order is in place but one parent is failing to pay the sums ordered, the other parent can apply to court to enforce the order. Likewise the person breaching the order can apply to the court to vary the original order (for example, by showing that these payments are no longer affordable).

If there is no agreement in place and child maintenance is due to end when the child finishes secondary school, then a parent may be able to apply to the court under Schedule 1 of the Children Act 1989 to the court for continued financial support from the other parent. Crucially, the child must be or soon to be in education or training, and the application must be made before the child’s 18th birthday.

Many parents miss the window to make the application before their child turns 18. However, all is not lost. Adult children who are in education or training, may apply to the court themselves for financial support from one or both parents, provided the parents are not living together.

It will not be possible for the child to make this application in circumstances where a maintenance order was in force with respect to him/her before immediately before their 16th birthday. This exception makes it all the more important that parents consider making a court application to extend any existing maintenance order before it expires otherwise an adult child could be left without recourse.

Under Schedule 1, adult children (or their parents if applying prior to the child is 18) can apply for periodical payments (meaning ongoing maintenance payments) or a capital lump sum. Therefore, this could cover the cost of tuition fees, accommodation costs and other discretionary spending costs.

If the application is successful, then the court can decide (or the parties can agree) how financial support is paid. Some parents prefer to pay it directly to the other parent so that the money can be more controlled, whereas some parents prefer it to pay it all to the child. A middle ground is often agreed or ordered whereby one third is paid to the parent and two thirds to the child which roughly reflects children spending one third of the year at home for holidays and two thirds at university.

When determining a Schedule 1 application, the court must look to “all of the circumstances of the case” including:

• the income, earning capacity, property and other financial resources which each person has or is likely to have in the future;
• the financial needs, obligations and responsibilities which each person has or is likely to have in the foreseeable future;
• the financial needs of the child;
• the income, earning capacity (if any), property and other financial resources of the child;
• any physical or mental disability of the child;
• the manner in which the child was being, or was expected to be educated or trained;
• in the case of an application against a step parent, the Court will also take into account whether they assumed responsibility for maintenance of the child knowing that the child was not their child and further, the liability of any other person to maintain that child.

Every case is different and will turn on its facts, but as a general principle the court can often be reluctant to force parents to pay for their children beyond the age of 18. The assessment will not be based on what is fair or equal between the parents but rather what the child’s need is for the financial support and the resources available to the parents.

Court can often be an expensive and time-consuming process which causes a great deal of stress for all involved. Many parents try to reach agreements via solicitors or by attending mediation.

There are other forms of dispute resolution such as collaborative law and arbitration which often work well for these kinds of dispute too. It is important to note that all of these processes are voluntary so if one person refuses to engage, then making a court application may be the last resort.

It is an inescapable reality that most children continue to need financial support even when they go off to university and it can be extremely worrying when one parent abruptly stops contributing. If necessary, parents or their adult children can pursue dispute resolution processes or make a court application to seek financial support by the non-paying parent. Such applications are difficult to litigate and legal advice is highly recommended.

Our family solicitors can advise you further on your options if you are concerned about financial support once your children begin university.