The Team

Sheriff orders children of divorcing couple to attend state school
Sheriff orders children of divorcing couple to attend state school

In a recent divorce case in Edinburgh Sheriff Court, Sheriff Alison Stirling issued an order directing that the two children of the marriage terminate their studies at a private school and be enrolled in a state school. This is an extremely unusual order in divorce proceedings.


The judgement followed lengthy divorce proceedings brought by the husband against his wife following the discovery of her adultery with a paramour. There were interlinked financial arrangements between the parties in the form of interests in each other’s companies and income derived from a mixture of salary and dividends. The parties had married in 2003 and separated in 2018.


The wife (the defender in the action) had argued that her husband (the pursuer) should be made pay for the children’s school fees to allow them to continue their education at the private school which they had been attending. The pursuer had argued that he could not afford the private school fees and had proposed that the children be moved to two other private schools where the fees were not as expensive. His wife objected to this and rejected this as a solution. The husband then suggested that they apply for a bursary at their current private school but again his wife opposed this. Finally, the husband advised that he could not afford to continue to pay the private school fees and, on that basis and in the absence of an alternative, that the children should attend a state school.


The defender argued that the school fees could be paid from the pursuer’s capital. The sheriff rejected the defender’s argument in this regard.


The pursuer had remained in the family home and the sheriff ordered that this be transferred into his name. The sheriff also ordered that the pursuer pay a capital sum of £30, 784.08 to the defender on the transfer of ownership of the former family home.


With regard to the children’s attendance at private school, Sheriff Stirling therefore:

“makes a specific issue order directing that notice of termination of studies shall be given to Private School 1 forthwith in relation to the attendance there of the parties’ children Emily and Kate [not their real names]; and directing that the children shall commence attendance at State School 1 for the furtherance of their secondary education when term resumes after the mid-term holiday in October 2020”


There was another twist in this case in that a curator ad litem was appointed to the children to prepare a report for the court. The sheriff rejected the curator’s conclusions and advised that the report had exceeded the curator’s remit.


Whilst Sheriff Stirling’s judgement is lengthy, she gives a very clear reasoning for her decision as well as the conclusions she reached and orders she made and it makes for informed reading of those contemplating divorce when there are children involved.


You can read Sheriff Stirling’s judgement in full by clicking here.


Case name: X v X 2021 SC EDIN 32