Can I sue for educational expenses?

All Woman

Dear Mrs Macaulay,

My son's father and I have a verbal agreement to fund our child's tertiary education. We both agreed to cover an equal share of all fees and expenses incurred. However, he is not living up to this agreement. For the past five years I have been taking care of most of the expenses. I had to apply for a leave of absence for last semester because his dad refused to pay any more fees. My son is now back in school. He has just two semesters to finish, but I am finding it very difficult to come up with the payments as well as his travelling and boarding allowances. Can I sue his father?

It always surprises me when people act as you have done about an issue of financial payment in the future. Maybe as a lawyer I have seen and known of too many broken 'promises'. For five years you have accepted the unfulfilled 'promise', and with only two semesters left, you have now decided that you cannot meet your son's educational expenses alone.

I suppose what you really wish to know is whether you can succeed if you sue. My answer to your query will be rather short, but before I go into that, I need to deal with the fact that you chose not to legally bind this father to meet his half of your son's tertiary-level educational expenses.

This could have been done quite simply in a written 'Settlement Contract', duly signed by you both following advice from your respective lawyers, who would have satisfied themselves that each of you understood the obligations you were to undertake under the contract and willingly agreed to them.

This fact would have been certified in paragraphs at the end of the contract made by your respective lawyers and would have been properly executed by them. This would overtly have bound your son's father to his obligation to pay his one-half share, and you could easily enforce the contract.

The certificate by his lawyer that he understood and freely agreed to the contents and duly executed the agreement would remove any defence by him that he did not understand what he was signing, or that his signature was obtained by fraud or duress. You, however, chose not to take the formal route.

Indeed, a verbal contract can be binding, and as long as the evidence shows that all the requirements for an enforceable contract were met, it would have been enforceable. These, in short, are that all the terms of the verbal contract were clear and understood by both parties, and the consideration for it was also clear and present — this would be the education of your son, the provision of which you were both obligated to meet. You would have to show that you relied on his agreement, rather than a mere promise.

So, can you sue? Well, the short answer is that you can sue for anything that is not immoral or illegal. Your claim would clearly not be illegal, but would your verbal 'agreement' be enforceable? Without more information I cannot answer you definitively.

However, I am concerned that for five years you did not hold this father to his agreement, and also why it has taken five years for your son to complete his tertiary-level studies. I am not even sure whether you wish to claim for the entire range of tertiary-level costs or just for the cost of the two semesters left.

I note that in taking on the sole burden for five years, you seem to have overturned the plea that you relied on the father's agreement to meet one-half of the expenses. Of course, you should consult a lawyer (which you should have done at the time you made the verbal contract) regarding your chances of success with full disclosure of all the facts, which I do not have.

This is the most prudent move for you to take legally. Practically, between you and your son, you will have to find a way of obtaining loans, or maybe he could get a parttime job to help pay for his own expenses. Good luck to you both.

Margarette May Macaulay is an attorney-at-law, Supreme Court mediator, notary public, and women's and children's rights advocate. Send questions via e-mail to allwoman@jamaicaobserver.com; or write to All Woman, 40-42 1/2 Beechwood Avenue, Kingston 5. All responses are published. Mrs Macaulay cannot provide personal responses. DISCLAIMER: The contents of this article are for informational purposes only and must not be relied upon as an alternative to legal advice from your own attorney.

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