Who actually bears the responsibility to pay for a learner's school fees? The South African Schools Act 84 of 1996 says that a parent is liable to pay school fees, [unless they are exempt from doing so in terms of the Act]. Who then is considered a parent?
To answer that question, we need to look to The Children's Act 38 of 2005 which says that a parent can be the biological, adoptive parents or guardian of the learner.
A parent can also include a person who has custody of a learner, or the person who undertakes to fulfill the obligations of a parent or guardian in taking care of the educational needs of the learner.
A custodian is a person who looks after the day-to-day needs of a child and is granted parental rights and responsibilities. In most instances, after a divorce, both parents retain joint guardianship of their children.
Where the parents of a learner are divorced, the issue of who is responsible for payment of all school fees and other related ancillary matters such as extra mural activities, etc. is normally addressed in the divorce order or in a divorce settlement agreement.
Where the divorce proceeding is not yet finalized and hence the question of who will bear the costs of education of the child is not addressed in any interim order by the Court, remains one of the more frequent areas of dispute between the divorcing couple. Needless to say this can become an issue fraught with anxiety especially for the children themselves.
According to the Maintenance Act 99 of 1998, both parents have a duty to support and maintain their children. This duty of support extends to both parents duty to educate their children. As both parents are liable for maintaining their children, school fees can justifiably be claimed against both parents including the parent who does not share primary residency with the children.