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Pet-related disputes are on the rise among my clients. This increase likely stems from a growing trend of couples acquiring pets, sometimes as an alternative to having children. Alternatively, societal attitudes may be evolving, leading to pets being valued more highly than in the past. Indeed, it is now commonplace for clients to discuss their pets with the same affection and consideration they would for relatives. These pets often sleep in the owners’ bedrooms and are fed home-prepared meals. They also receive gifts for holidays and birthdays, much like other family members.
Unsurprisingly, such devotion to a pet sometimes leads to bitter and emotive disputes during divorce and separation. A well-publicised example a few years ago was the wrangling between Ant McPartlin and his ex, Lisa Armstrong, over their chocolate Labrador, Hurley.
What does the law say?
In England and Wales, the legal status of a pet is strictly that of a ‘personal possession’ or ‘chattel’. Consequently, disputes concerning pets are resolved using the same legal principles applicable to tangible assets like vehicles or furniture. In court proceedings involving pet ownership disputes, the primary considerations are:
- who initially purchased the animal (unless it was received as a gift); and
- who has financially contributed to its upkeep, including expenses for food, insurance, and veterinary care.
Notably, the court does not typically consider which party has provided most of the daily care. Nor does it consider the pet’s emotional well-being or best interests. This legal framework can lead to inequitable outcomes, particularly for couples where one partner has been the primary financial provider.
It is important to note that separating couples are not legally obligated to adhere to this strict asset-based approach. Instead, they can reach their own agreements regarding their pets, mutually deciding with which partner the pet will live, often based on factors such as living space, capacity to provide care, and flexibility in their schedule. Furthermore, they can agree on visitation arrangements for the other party, akin to a parenting plan for children. Negotiations regarding these arrangements are frequently conducted through solicitors. If a consensus is reached, the couple can formalise their pet agreement within a financial consent order if they are divorcing or within a separation agreement if they are not.
Should the separating parties be unable to agree on arrangements for their pet independently, they have the option of pursuing mediation. However, mediation involves associated costs and does not guarantee a resolution will be achieved.
What happens in other countries?
In the US, there appears to be a shift in legal perspectives regarding pet custody. In 2017, Alaska amended its divorce law to permit judges to consider the animal’s ‘wellbeing’ when determining its living arrangements. The amendment also allows for the awarding of ‘joint custody’ of pets, mirroring the approach taken with child custody decisions. However, this approach has not yet been widely adopted in other US jurisdictions.
However, the law in Canada appears to echo that in England and Wales. In a case in August 2016 concerning a dispute between a divorcing Saskatoon couple about where their dogs should live, the judge roundly rejected any similarity between children and pets, stating:
“Many dogs are treated as members of the family with whom they live. But after all is said and done, a dog is a dog. At law it is property, a domesticated animal that is owned. At law it enjoys no familial rights.”
The judge acknowledged that pets can differ from other property in that statutory protection exists to prevent them from being treated with cruelty or neglect. However, he drew the line at applying the principles of child custody to animals, saying, “Simply put, I am not about to make what amounts to a custody order pertaining to dogs”.
Criticising the couple for tying up valuable resources by taking their dispute to court, he warned them that they “should bear in mind that if the court cannot reach a decision on where the dogs go, it is open to the court under the legislation to order them sold and the proceeds split – something I am sure neither party wants.” He then dismissed the application, pressing the pair to sort out the dispute themselves and leave the court to other matters.
What is a Petnup?
Given the default stance of treating pets as property, the most practical course of action for separating couples is to determine arrangements for their animal collaboratively. In doing so, they should prioritise the pet’s welfare and that of all involved.
This can be particularly challenging amidst the emotional upheaval of separation. Consequently, it may be beneficial to proactively address potential pet arrangements during happier times before separation occurs. To this end, couples can create a separate agreement detailing the ownership, custody, and other arrangements for their pet, sometimes referred to informally as a ‘petnup’.
Alternatively, provisions for the pet can be included within a more conventional prenuptial or postnuptial agreement. Notably, the Blue Cross reports an average of four pets surrendered to rescue centres weekly due to family relationship breakdowns. Frequently, this is because owners cannot reach a mutual agreement regarding the animal. The risk of such disputes would likely be significantly reduced if all pet-owning couples established a pre-nuptial agreement specifically addressing their family pet.