Who pays when they fly the nest?

Leaving school and heading off to college or university is a huge step for all – a wrench for the parent, the young person (sometimes!) and a real turning point in family life.

However, if you’re separated or divorced, it’s not just the emotions which are stressful but also the impending cost.

How will you support your child? Is it all down to you to fund their accommodation, food and social life? Can you ask your ex to stump up some cash? And what if they’re attending the local university and staying at home?

With thousands of teenagers preparing to take the next step, let me talk you through the repercussions.

The facts

If you’re separated or divorced, you will most likely have been receiving (or paying) child maintenance – either directly from (or to) your ex or via the Child Maintenance Service (formerly the Child Support Agency).

Under their rules, Child Maintenance is payable:

• For a child under 16, or
• For a young person aged 16-19 where Child Benefit is still payable for them and where they continue to receive full-time, non-advanced education.

Similarly, for couples with separation agreements, the obligation on the ‘non-resident’ parent to pay maintenance to the ‘parent with care’ normally stops at the same time – but check your small print to see what was agreed at the time!

So where does this leave you, and your child?

As stipulated by The Family Law (Scotland) Act 1985, both parents have a legal obligation to support a young person up to the age of 25 if they are studying at college, university or underdoing training for employment or a trade profession.

Indeed, because this is a legal requirement, a young person can sue their parents if they fail to do so, however, their demands are not automatic and not guaranteed to be met. They need to set out their stall and prove the need for reasonable expenses, providing details of their income and outgoings to demonstrate a shortfall. The Court would also usually expect that the young person could work part-time while studying, depending on how demanding their course is.

How much do you need to pay?

Unlike the statutory regime through the CMS – where the payment is a percentage of the non-resident parent’s income, and also takes account of any overnight stays – there is no set formula once they’re 18 and out of school.

Instead, it’s based on the needs of your child and your resources/ability to pay as parents.

Any aliment must also be paid directly to the young person, ideally with some guidance on how to spend wisely!

As a starting point, I’d suggest you prepare a list of your child’s estimated monthly income (if any) and outgoings – this covers everything from accommodation and food to course materials and socialising. If there is a shortfall, this is where your legal obligation comes in as parents.

It’s worth noting that the amount of aliment is unlikely to match the Child Maintenance payment, unless the non-resident parent is happy to keep paying that rate.

Keeping it local

Meanwhile, if your child plans to stay with you and attend a local college or university, you can argue that as you’re already meeting your own obligation by putting a roof over their head and paying the bills, that any shortfall should therefore be met by your ex. If however they refuse and your child wishes to pursue a case against them they can, but that would be your child’s choice and responsibility to action.

Mind the gap

Last but by no means least, if your child is opting for a gap year, there is no legal requirement for a parent to provide financial support unless this funding is agreed by the parents or the gap year is at an educational establishment. If the gap year is spent doing work that may help their future career, such as an internship at a foreign law firm as a prelude to a career in law, then they may be able to convince the Court that this is ‘training for a trade or profession’.

However, serving cocktails in an Australian beach bar would typically not be sufficient for the Court to make an order!

At a time when teenagers are about to embark upon their next exciting chapter, the last thing they need to worry about is suing their parent so it’s always best to be alert to what’s coming and work together to agree a way forward – ideally well in advance of Fresher’s Week!

The contents of this article are not intended as legal advice but a general guide. For specific advice about your own situation, legal advice should always be obtained.

If you would like to talk through your obligations as your child prepares for student life, please contact Amanda for an initial, no-obligation chat – call 01382 219004 or 07596 322 296, or email amanda@amandawilsonfamilylaw.co.uk.