Paws for thought: what happens to the pet on divorce?

14 February 2022

Most of my clients and the lawyers and experts with whom I work know far too much about my beautiful dog, Charlie. Yes, I am that kind of dog owner who over shares information about my four legged soul mate, and I have occasionally been guilty of referring to myself as his mummy. I make no apologies for this, but nor do I judge any raised eyebrows from those who think me slightly kooky as a result. 

For me and my husband, Charlie is more than a pet – he is a core part of our family unit and, in the four years since we rescued him, he has become the centre of our universe.  We have joked that, if we ever separated during his lifetime, we would need to work out a shared care arrangement; neither of us could bear the thought of being without him nor could we subject the other to that fate – and we have convinced ourselves that a shared arrangement  is what Charlie would want.

Joking aside, the question of pet arrangements and ownership on divorce can be a serious and heart breaking issue when it arises.  According to the Pet Food Manufacturers’ Association, 3.2 million UK households acquired a pet since the start of the Covid-19 pandemic, and there are now 17 million pet-owning homes in the country.  Disputes about a pet’s arrangements following their owners’ separation are not unheard of, and, given the boom in pet ownership, could become increasingly common.

When such issues have arisen on my cases, it can come as a complete shock to clients when I tell them that the family court considers their much loved, furry family member in the same way they would consider any personal belongings, such as the sofa or the kitchen table. Our pets are treated no differently than the household contents on a divorce, the distribution of which the couple will need to reach agreement over or ask the court to determine.  

Unlike with children, the family courts here have no requirement to consider the welfare of a pet or the pet’s wishes and feelings on a divorce. There are, however, a number of jurisdictions that take a different approach.   Recently courts in Spain started to consider a pet's welfare when couples separate and in October 2021, a Madrid judge gave joint custody of a dog to an unmarried couple who sought a court ruling on whom the pet should stay with after they separated.  It was ordered that the dog should spend a month with each party, and both are legally responsible.  In 2014, France promoted the status of pets from “personal property” to “living beings”, paving the way for shared custody of pets in divorce cases.  Since 2017, couples getting divorced in Portugal need to state if they have any pets on their divorce application and, if they do, they must state what will happen to them going forward.  In California the court has the power to make an order ‘to require a party to care for the pet animal’ and ‘may assign sole or joint ownership of a pet animal taking into consideration the care of the pet animal’. 

By comparison, the English courts are lagging behind in their approach to pets on divorce.  The treatment of pets as “personal property” is far removed from the significance they have in many family units.  Unlike the household contents, pets cannot just be split in two and, for many, simply walking away is not an option their owners wish to consider.  Given this, pet disputes arising on a separation can be difficult to resolve, leading to increased costs (more back and forth correspondence) and much heartbreak.  Those who say that it is disproportionate to dispute pet ownership and care arrangements on divorce are underestimating the emotional significance they have to many owners.

There are some ways protracted disputes can be avoided.  For example:

  1. “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.  A client I worked with a few years ago had two dogs before she met her soon to be husband.  In their prenuptial agreement, they both wanted to record their agreement that, if they separated, the dogs would remain with her but the husband would have a weekend with them to say goodbye.  They felt that a shared care arrangement wouldn’t work for their fur babies, but also recognised that the sudden, premature removal of a pet from the husband’s life would be difficult. 

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 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.

  1. 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”.

  1. 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.

  1. 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 (including my own), registration and costs are dealt with in joint names so don’t necessarily help determine what should happen after a separation.

Whilst the court does not currently take into account a pet’s best interests, it is required to consider the welfare of any children of the family when considered how a couple’s assets should be divided.  This could be relevant where a child has a particularly close bond with a pet, and separating the child from the pet could have a detrimental effect on the child’s welfare. 

Where a couple can agree a shared care arrangement for pets, there are some tools that can help them manage this.  There are a number of co-parenting apps available to separating parents, and I have seen these used for couples entering into a shared care arrangement for their pets.  I explored this on a previous case last year, where the parties had a much loved dog who was at the centre of discussions arising from their divorce.  They did not have children, but both viewed their pet as their child.  At the time, James Evans at OurFamilyWizard, shared this helpful information:

“In these scenarios, the parents sign up to OurFamilyWizard as normal. However, when they are adding a ‘Child’ account, they simply use this for their pet. This allows them to put in a schedule for who is taking responsibility of the time spent with the pet, on what days and what times and then allows them to make requests to change or swap these times. They can use the journal to share pictures of the pet, the information bank to store information about the pet (such as medication or allergies) and track expenses that have been made towards the pet.”

Some practitioners have concerns that requiring the court to take into account a pet’s welfare and wishes and feelings could see an increase in litigation for separating couples.  I don’t agree with this, as there is already the scope to litigate, albeit with the very unsatisfactory reality that the pet is treated no differently than a chattel. 

Regardless of the approach the court might take in the future, 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.  A pet is a huge commitment, and proper thought should be given to the ongoing care for that pet before that commitment is undertaken.  That care does not end when a relationship ends.  Our pets give us so much unconditional love during their short lives, and deserve to be more than a pawn in a difficult separation.  They are more than just objects or property.  Whether the approach of the courts here will ever change remains to be seen.  As a proud pet mum, I do hope so.

 

Further information

If you have any questions about the topic of this blog,  please contact Stacey Nevin or a member of our team of family and divorce lawyers.

 

About the author

Stacey Nevin is a Senior Associate in our Family and Divorce team.  She advises UK and international clients on matters involving all aspects of family law, in particular complex financial issues and private children cases. 

 

Share insightLinkedIn Twitter Facebook Email to a friend Print

Email this page to a friend

We welcome views and opinions about the issues raised in this blog. Should you require specific advice in relation to personal circumstances, please use the form on the contact page.

Leave a comment

You may also be interested in:

Skip to content Home About Us Insights Services Contact Accessibility