Bath divorce and family law solicitor, Sarah Jackson, sheds light on what happens to pets on marital breakdown and whether advance planning can be helpful.
A growing problem
I am finding that disputes over pets are increasing amongst my clients. This may be because more couples are deciding to have pets, sometimes in place of children. Or perhaps pets are being held in greater regard than previously. Certainly, it is not unusual to hear clients talk about their pets as if they were human relatives; they sleep in the bedroom, eat home-cooked meals and receive Christmas and birthday presents just like other members of the family.
Unsurprisingly, such devotion to a pet can sometimes lead to bitter and emotive disputes during divorce and separation, one such example being last year’s wrangling between Ant McPartlin and his ex, Lisa Armstrong, over their chocolate Labrador, Hurley.
So where does the law stand exactly when it comes to custody of the family pet?
In England and Wales, strictly speaking, the law regards a pet as a ‘personal possession’ or a ‘chattel’. This means that disputes are dealt with using the same principles that would be applied to an asset, such as a car or a piece of furniture.
Therefore, if there is a dispute over a pet in court, the court will consider who the rightful owner of the animal is with reference to who bought it (unless it was a gift) and who has paid to care for it – food, insurance and vet bills – without bearing in mind who has carried out the majority of day-to-day care for the pet; the feelings and best interests of the pet will not be taken into consideration. For couples where one has taken the role of the breadwinner, this can result in an unjust outcome.
This is not to say that a separating couple cannot reach their own agreement with regard to a pet. It is open to a couple to decide between them with whom the pet will live full time, which will usually be based upon who has the space, the capacity and the flexibility to care for the pet, and then if necessary for the other party to have contact with the pet at agreed dates and times, much like a parenting plan for children. Often negotiations in this respect will be conducted through solicitors and then, if an agreement can be reached, the couple can choose to include provision for their pet within a financial consent order if they are divorcing or within a separation agreement if they are not.
If separating parties cannot agree arrangements for a pet between them, they can undertake mediation. However, this comes with some cost and with no guarantee that an agreement will be reached.
In the US
In the US, it would appear that pet custody laws are changing; in 2017 the state of Alaska adopted an amendment to its divorce law to allow judges to take into consideration ‘the wellbeing’ of the animal when deciding with whom a pet should live and to award ‘joint custody’ of pets in the same way it can with children.
This is not an approach which is being adopted more widely at present though.
The law in Canada, for example, appears to echo that in England and Wales; in a case in August 2016 concerning a dispute between a divorcing Saskatoon couple who disagreed about where their dogs Kenya and Willow 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.”
While 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, 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”.
He went on to criticise the couple for tying up valuable resources by taking their dispute to court and 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.
So, given that the default position of the court is to treat a pet as an item of property, the only real option for a separating couple in the UK is to try and work out arrangements for their pet between them, taking into account the welfare of the animal and of all family members. This can be really hard when you have just separated.
Therefore, it may be better to address what will happen to any pet in the event of separation before you separate, in happier times. To this end, it is possible to separately agree the ownership, custody and other arrangements for your pet in what is sometimes called a ‘pet nup’, or to incorporate arrangements for your pet in a more standard pre- or post-nuptial agreement.
It is notable that the Blue Cross claims that four pets every week are taken to their rescue centres due to a breakdown in a family relationship, often because the owners cannot reach an agreement.
Undoubtedly, the risk of dispute would be minimised if all pet-owning couples were to put in place a pre-nuptial agreement with specific regard to the family pet.
For further information or advice on any aspect of divorce and family law, please contact Sarah Jackson at email@example.com, telephone her on 01225 462871 or complete the Contact Form at the foot of this page.