X AGAINST Z

Factual and Procedural Background

The parties, referred to as Pursuer and Minuter and Defender and Respondent, separated in June 2018 and divorced on 17 February 2020. They had six children, with three youngest—James (17), Euan (15), and Diana (12)—attending independent boarding schools. Prior to divorce, the parties agreed that the Defender would be solely responsible for future school fees and associated educational costs for four children, including the three youngest. The children had a history of attending preparatory schools followed by boarding schools for secondary education.

Following separation, the parties ceased direct communication, relying instead on intermediaries—each party's brother—to facilitate communication. The dispute concerns the responsibility for payment of school fees after changes in the children’s schooling arrangements and the Defender’s change in financial circumstances and willingness to pay.

James was asked to leave his original boarding school due to disciplinary and academic concerns and subsequently enrolled at a different boarding school. Euan continues at the boarding school originally agreed. Diana was unilaterally moved by the Pursuer from her preparatory school to a more expensive boarding school without the Defender’s agreement. The Defender ceased paying school fees for James and Diana from January 2022, while continuing to pay for Euan until summer 2022.

Legal Issues Presented

1. Whether the Defender remains liable to pay the full school fees, invoiced extras, and educational costs for James's attendance at the new boarding school for the period from 3 December 2021 to 4 July 2022, and thereafter on what basis.
2. Whether the Defender is liable to pay for Diana's attendance at the new boarding school, considering the unilateral change of school by the Pursuer and the increased cost.
3. Whether the Defender's obligation to pay Euan's school fees at the agreed boarding school should be varied, reduced, or extinguished due to changed financial circumstances.
4. The appropriate apportionment of school fees and educational costs between the parties given their respective financial resources and the changed circumstances.
5. The extent to which the Minute of Agreement should be varied to reflect changed circumstances and ongoing obligations under aliment law.

Arguments of the Parties

Pursuer's Arguments

• The Pursuer seeks orders making the Defender liable for the full school fees and associated costs for James’s attendance at the new boarding school from 3 December 2021 to 4 July 2022, and half thereafter.
• She seeks similar orders for Diana’s attendance at the new boarding school, arguing the move was in Diana’s best interests based on professional advice and the child’s wishes.
• She requests that the Defender be found liable for one half of Euan’s school fees at the agreed boarding school.
• The Pursuer is not employed and has limited capital resources, having funded the children’s education since January 2022 and argues she should not be required to deplete her capital further.
• She relies on professional psychiatric evidence supporting James’s placement at the new school, emphasizing his mental health needs and the difficulties in placing him elsewhere.

Defender's Arguments

• The Defender contends his financial circumstances have materially changed due to share sales, criminal convictions, and loss of income, rendering him unable to afford school fees.
• He argues he was not consulted about the changes of school for James and Diana and was excluded from decisions affecting their education.
• He disputes the reasonableness of the unilateral change of school for Diana, emphasizing the significantly higher fees and lack of agreement.
• The Defender maintains that the Pursuer did not adequately consider alternative schooling options for James and that he was blocked from meaningful involvement in decisions.
• He seeks a variation of the Minute of Agreement to reduce his obligation for Euan’s fees to nil, citing his diminished income and resources.

Table of Precedents Cited

Court's Reasoning and Analysis

The court applied the Family Law (Scotland) Act 1985 provisions regarding aliment obligations, focusing on reasonableness in support considering the needs of the children and the financial resources of the parties. The court recognized the Defender’s changed financial circumstances, including diminished income and loss of employment following criminal convictions, as a material change warranting variation of the Minute of Agreement.

Regarding James, the court found the Pursuer’s efforts to secure appropriate schooling reasonable, given James’s mental health needs and difficulties in placement. The court accepted the professional advice supporting James’s placement at the new boarding school and found it reasonable for the Defender to be liable for full fees from 3 December 2021 to 4 July 2022.

For Diana, the court noted the unilateral change of school by the Pursuer without the Defender’s consent, the lack of pressing educational reasons for the move, and the significantly higher fees. The court limited the Defender’s liability for fees during that period to the equivalent cost of attendance at the original preparatory school, finding the additional expense unreasonable support.

For Euan, who remained at the agreed boarding school, the court acknowledged the Defender’s diminished resources and varied the obligation so that the Defender is liable for one-sixth of the fees and associated costs from 4 July 2022, reflecting a fair apportionment given the parties’ respective resources.

The court carefully assessed the parties’ financial evidence, including income, capital resources, and expenditures, and found that while neither party could currently pay full school fees from income, both had capital and potential economic activity. The court declined to treat proceeds from the sale of the farm as foreseeable resources, but treated shareholdings and pension income as relevant resources.

The court also found that the Defender’s attitude and conduct, including resentment over loss of parental input and alienation from the children, influenced his unwillingness to pay but did not justify reduction beyond what financial circumstances warranted.

Holding and Implications

The court’s final decision is as follows:

• The Defender is liable to pay the full school fees, invoiced extras, and educational costs for James’s attendance at the new boarding school from 3 December 2021 to 4 July 2022.
• From 4 July 2022, the Defender’s liability for James’s fees is varied to one-sixth of the fees and associated costs.
• For Diana, the Defender is liable to pay fees equivalent to the preparatory school fees from 3 December 2021 to the end of the summer term 2023, and thereafter one-sixth of the fees for the new boarding school.
• For Euan, the Defender’s liability is varied to one-sixth of the fees and associated costs from 4 July 2022.

The court’s orders reflect a balancing of the children’s educational needs, the parties’ original intentions, and the changed financial circumstances of the Defender. The decision does not set new precedent but applies established principles of aliment law and reasonableness in financial obligations for child education. The direct effect is a variation of the prior financial agreement to reflect fairness and practicality in light of changed circumstances.