Tue 19 Aug 2014

Do I really need to continue to support my 25 year old child?

Everyone knows that we are all supposed to support our kids. Everyone knows, but not everyone does of course! We tend to have the perception that problems only arise where the parents have separated, but that is not strictly correct. The law (as written in the relevant Act) makes no distinction between families who have separated and families who have not. It simply imposes a blanket obligation on parents to support their children. So what is a "child"?

Section 1 of the Family Law (Scotland) Act 1985 helpfully tells us that a "child" means a person (a) under the age of 18 or (b) over that age and under the age of 25 years who is reasonably and appropriately undergoing instruction at an educational establishment, or training for employment or for a trade, profession or vocation". This blog is concerned with those children who are over 18 but under 25.

The usual culprits are students (either at University or College). They have left school, are over 18 and are ready to face the world. Not that many years ago, the number of school leavers attending university was around 5%. Following the Blair initiatives in education, that figure - for good or bad - is now around 50%. Put shortly, the legal liability to support that group  impacts on a lot more homes than was perhaps anticipated in 1985 when the legislation was introduced. However, the Act would also cover apprentices and similar trainees. So how does it all work in practice?

The usual starting point is for the claimant (say, student) to prepare a budget of their reasonably anticipated needs. That will include accommodation, food, clothing, travel costs (to University - not Thailand), books and kit needed for the course, tuition costs, insurance, any health/dental/optometrist type costs and so on. It is doubtful if the budget should include anything to do with drugs, sex or rock 'n roll! Let's assume these are optional extras. Having established a total for the reasonably anticipated needs, how is that to be funded?

Most families will sit and down and have a discussion. There are at least four sources of  potential funding - dad, mum, a family fund of some sort created for this occasion and the claimant him/herself. Contrary to popular belief, the law does not simply dump the entire responsibility on dad. In fact, the law is refreshingly gender neutral (contrary to popular belief). There is no assumption either that the requirement to support older children must be shared equally between the parents. The level of support is what is reasonable in the circumstances.  Section 4 of the 1985 Act requires the court when determining the amount of aliment to award, to have regard to:

(a) the needs and resources of the parties;

(b) the earning capacities of the parties;

(c) generally to all the circumstances of the case.

Plainly, the court has wide discretion.

The incomes from all sources of both parents are relevant together with their outgoings. If they are living on overdraft and spending more than they earn, they will still be expected to make a contribution but tighten their belts elsewhere. If there is a family education trust or similar, it is assumed that there will be a discussion with the Trustees to agree a level of support from that source. If there were family savings specifically earmarked for educational purposes (even although held in the name of one of the parents) then that would be relevant. Finally, the claimant will also have access to financial resources of their own including a student loan and part time work. Some students have savings or inheritance of their own, and that can't be ignored.

At the end of the day, the outcome should be a balance which does not unreasonably prejudice any of the parties. The courts have sometimes struggled with this. The consensus of the case law suggests that it is reasonable to expect a student to apply for a standard student loan and to obtain some part time work for their own benefit. Those principles were applied in a case where the student was studying law and the Sheriff acknowledged that although the course was intensive, there should still be scope for pulling pints in the evening and applying for a loan. In another case it was held to be undesirable that the claimant should hold down more than one part time job.

There are other factors to consider………

Like most rules which require a parent to support a child or spouse, there will be scope for varying the agreed amount where there is a "material change in circumstances" of any of the parties. A variation may be an increase or a decrease depending on the nature of the change.

Should the obligation extend for 52 weeks in the year or for 30 weeks ( the usual academic year)? At least one case report has suggested that during the first year at least, while the student is finding his/her feet, the obligation of aliment should continue throughout the year. It also needs to be recognised that there are some courses where the student will be expected to do course related work during the long summer break and will therefore have little opportunity to find part time work. On the other hand it is difficult to see why parental support is till required during the holidays if the student finds  a reasonable holiday job which enables them to support themselves.

There is no standard or "normal" benchmark for living costs for students. This will vary from course to course (some of which require students to purchase expensive kit), and from region to region. Each case is different (even within families sometimes) and needs to be treated on its own merits.

In cases where there is a family educational fund or Trust and there are several eligible children each competing for a slice of the pie, it can be difficult to strike an amount which is seen by all interested parties as being fair. In principle, however, if a student is a beneficiary then assistance should not be denied.

The obligation stops when the claimant  is no longer "undergoing instruction at an educational establishment" etc. So if a student bails out of University half way through their first year, they are no longer entitled to financial support from their parents. Similarly if they complete their course by age 22 but can't get a job, the parents are under no obligation to continue to support the child until age 25.

Where the student is living at home while attending University, the parent whose home it is can reasonably say that they are already making a reasonable contribution by providing accommodation, heat, light, laundry, food etc. That should be taken into account in the budget.

Finally, it would wrong to suggest that problems do not sometimes arise where the parents have separated. Thankfully, in the majority of cases in my experience, parents are able to have a civilised discussion with each other and the student child(ren) and agree a regime that works for everyone. That can be done without the need to record anything in writing in cases where trust and good faith are maintained. A brief written agreement is preferable where that is not the case. It is much more difficult (and therefore expensive) to agree matters where there is hostility, bad faith, resentment, poor communication or a refusal to accept that the proposed education is "reasonable and appropriate". The ultimate tool for the claimant is to sue either or both parents in court. Unsurprisingly there are few such cases. Most kids don't want to sue their mum or dad! The cost of the legal process would be much more profitably applied towards the support of the student.

The short answer to the question posed in the title is "no". The obligation ends the day before the 25th birthday and only arises where the claimant is "reasonably and appropriately undergoing instruction at an educational establishment, or training for  employment or for a trade, profession or vocation".

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