From Separation to Succession: Protecting your Pets

According to the PDSA’s 2024 report on pet populations, over 51% of UK adults currently own a pet.  To many their pets are not “just pets”, but beloved family members and a core part of their family unit.  If something unforeseen should happen in the future, most would want the best for their pets.  Often, however, when an unplanned major live event happens, such as a divorce or the death of a pet owner, thought has not been given to what should happen to the pets.
 

Pets and divorce
 

The question of pet arrangements and ownership on divorce can be a serious and heart-breaking issue when it arises. Of the more than 410 lawyers who responded to the recent survey by The Working Group of Pets on Divorce, 93% said they had encountered issues of pet disputes.  It can come as a complete shock to clients when they learn that the family court considers their much-loved family member in the same way they would consider any personal belongings, such as the sofa or the kitchen table. This is something the Working Group of Pets on Divorce is working hard to change, but until then, what can a couple do to resolve a dispute in the event of a divorce?

“Pet-nup” clauses in prenuptial agreements

Prenuptial agreements, or even freestanding “pet-nups”, can set out a couple’s agreement for the arrangements for their pet in the event they separate.   The agreement can deal with the right of ownership, and arrangements for the pet’s on-going care and arrangements to meet the ongoing expenses associated with the pet.  In particular where there are pets with long life expectancies, such as tortoises this can be very sensible.

Like prenuptial agreements, pet-nups are not enforceable in England and there is nothing in English law to say that a court has to uphold an agreement in the event a marriage breaks down. However, the significance of a properly recorded agreement is a relevant circumstance of the case on divorce, the importance of which will be weighed by the judge as one of the factors for consideration in reaching a decision on the appropriate division of assets.  By recording wishes and agreement at a happier point in their relationship, couples may find discussions and negotiations easier with reference to that agreement at the point of separation.

 

Mediation

Mediation is a voluntary, confidential process where couples can explore any number of issues and consider more creative solutions than the court may be able to offer.  Mediators are independent and neutral, and are there to help a couple explore options in a confidential setting.  A good mediator will facilitate a conversation between a separating couple, encouraging a constructive dialogue as they look to explore agreement.  There is no reason why couples could not consider the arrangements for their pet in mediation.

Mediation as a method to deal with pet disputes was referred to by the court in the case of IX v IY [2018] EWHC 3053 (Fam).  The parties owned two dogs, and the court determined that each party should keep one dog each.  The judge commented “I believe that one dog is currently in France and one dog is in England. That seems to me to be fair. If the parties wish to argue over their access to the other dog, I would suggest that they place the dispute before a mediator or arbitrator, perhaps one with experience of dogs”.

It is possible to involve third parties in mediation if both parties and the mediator agree to this.  If the arrangements for a pet is a prominent issue in the mediation, it may be possible to bring in a pet behaviour expert to assist in the process.  Not all pets cope well with a shared care arrangement, and it can help to have an expert’s input for a couple to see this when considering the difficult question of who the pet should live with post separation.

 

Arbitration

Arbitration is a non-court alternative method of resolving disputes, where an arbitrator is appointed by the parties to make a binding decision.  It is possible to arbitrate over discrete issues, such as the arrangements for a pet.  There is still a cost to this; the arbitrator will provide a fee and the parties may wish to have legal representation. It is, however, usually a much quicker process than court proceedings.

 

Court

The last resort for separating couples is court proceedings and the question of pet ownership and how the pet, as “property”, should be shared or dealt with can be determined by the court.    As stated above, however, the court is not required to consider the pet’s welfare or its wishes or feelings.  Court proceedings can be expensive, slow, emotionally draining and offers a blunt instrument which may not suit either party.

The court will consider factors such as who paid for the pet, who the pet is registered to and who pays for the pet insurance.  Those factors are not necessarily reflective of who deals with the care of the pet, and in many families, registration and costs are dealt with in joint names so don’t necessarily help determine what should happen after a separation.  In the recent case of FI v DO [2024] EWFC 384 (B), District Judge Crisp considered the fact that the dog had lived with the wife for the last 18 months, since the parties separated, and the dog clearly considered her as her carer. The judge noted “it would be upsetting for both the dog and the children were those arrangements to alter.”

 

Pets and the death of an owner
 

Similarly to a divorce situation, for testamentary purpose, pets are generally considered personal chattels (i.e. belongings) and cannot directly inherit property. Any purported gift in a Will made directly to a pet would therefore fail (sadly, the plot of the Aristocats is not legally sound!).  

Whilst this is in the context of divorce and separation, it is indicative of the potential scope for disputes between family members and loved ones on a major life event, such as the death of an individual. For those wishing to provide for their pet in their Will, careful thought should be given to make sure that your wishes can be carried out after your death.  

Identifying the pet

The first thing to consider is whether you want the gift to be for the care of your current pets or any pet alive at your death. Depending on the answer to this question, the gift must be carefully drafted so that it is clear which pets it applies to in order to avoid any confusion on death or risk the gift failing.

 

Who is to look after the pet?

You will then need to think about whether you would like your pets to be looked after by a particular person. You may consider family, friends or another person who may be familiar with the pets. It will be very important here for you to think carefully about who would be able to take on the responsibility and be willing to do so.  Discuss this with them to check they are ready and able to take on this responsibility should the time ever come.

As part of this exercise, some of the factors you should consider include the life expectancy of the pet, the pet’s level of physical activity and the age and mobility of the person to whom you wish to entrust their care. For example, if you expect the pet to have a long life expectancy you may wish to consider the age of the individual, to limit the prospect of the pet having to be gifted to successive owners following those owners’ deaths. Most pet owners would likely wish to avoid this because they will have their pets’ wellbeing as their paramount concern and will want to avoid any disruption to their lives where possible.   If the pet requires a lot of exercise, consider the mobility of the individual (or, alternatively, the cost of someone exercising the pet on their behalf, such as a dog walker).  Does the pet need to be in a childfree home?  Or in a home where someone is present for most of the day?  Consider the individual needs of your pet and whether they are a good match to a willing custodian.

You may still wish to consider including a substitute if the person named initially is unable or unwilling to care for the pets (whether that be another named individual or an animal rescue or welfare charity, for example).

 

The needs of the pet

What resources are needed to maintain the pet in question?  Depending on the animal, these costs could be significant. For example, the estimated yearly cost for care of a dog is around £1,200 to £1,400 and for a cat it is around £1,000 to £1,200.   A horse could require £3,000 to £10,000 per year to cover its care.  (Figures from Practical Law)

Consider how you can make adequate financial provision for the care of your pets based on their needs and their expected life expectancy, to try and avoid a situation where the individual is unwilling or unable to take on the pets or carry out your wishes.

You should think about the particular needs of each pet, from medical conditions to what they eat. If you want to make sure that the pets continue to receive the care and attention they currently receive, a letter of wishes can be a helpful way of recording this. Within this, you can include details such as vet contact details, medication details and microchip details, which will be a helpful aid to whoever is to be responsible for the pets.

Providing for a pet in a Will

There are several different types of gift that you could consider including in your Will to look after your pets:

• An absolute gift of the pet/s (which may or may not also include financial provision for the pets) to a named beneficiary (a person who is entitled or may be entitled to receive a benefit under a Will);
• An absolute gift of the pet/s to your executors (the individual who administers a deceased person's estate, having been appointed in the Will) with a Letter of Wishes;
• A gift to an animal charity; or
• Using a trust, for example a trust limited to 21 years for the care of the pet animal or a discretionary trust:
  • A trust limited to 21 years for the care of a pet animal is an exception to the general rule that English law does not allow non-charitable trusts for purposes because there are no beneficiaries to enforce such trusts. Such a trust must be limited to a period of 21 years from death and there may also be potential practical issues relating to this option such as choice of trustees (and replacement trustees) and meeting their expenses.
  • A Discretionary trust is a flexible trust whereby the trustees can make certain decisions about how to use the trust income and capital and how to apply it for the named beneficiaries. This type of trust would also be accompanied by a letter of wishes.

There are a number of risks associated with these types of gifts, which you should seek legal advice on to ensure that you understand the potential pros and cons of each option.

 

Conclusion
 

Our pets give us unconditional love during our lifetimes.  This will need to continue after the divorce of their owners or the death of their loved ones.  Many clients are surprised to learn that, despite being more than just objects or property, a pet is legally considered a chattel.  It is therefore very important that you are clear on what the position is and what your options are in relation to taking care of your pets after you die, to limit the scope of dispute amongst surviving loved ones and to ensure they continue to receive the care and love that they deserve.  In respect of a potential separation or divorce, when a pet comes into a couple’s lives, thinking about what would happen to the pet in the event of a future separation is sensible and can reduce the scope for future disagreement. Our pets give us so much unconditional love during their short lives and deserve to be more than a pawn in a difficult separation or an afterthought in the context of an owner’s death.

about the authors

Lucy is an associate in Kingsley Napley's private client team, where she acts for families and high net worth individuals in relation to various matters including the preparation of Wills and Lasting Powers of Attorney, lifetime succession and estate planning, the administration of estates and issues relating to capacity. Lucy is a full member of the Society of Trust and Estate Practitioners (STEP). She is also a member of the firm’s LGBTQ+ & Allies Network and has a particular focus on Estate & Tax Planning for LGBTQ+ Private Clients.

Stacey is a Partner in the Family team. She advises UK and international clients on matters involving all aspects of family law, in particular complex financial issues and private children cases. Stacey is also an accredited mediator and works with couples to help them resolve practical and legal issues arising from their separation without the need to attend court.