Pets are for life, even after divorce: solutions for pet arrangements from pet nups to mediation

Today, 11 April 2024, is National Pet Day.  Most of my clients and the lawyers and experts with whom I work know far too much about my beautiful dog, Charlie and since I last wrote about him, my husband and I have added Norman to our pack. Charlie joined our family 7 years ago this month, and when we made the decision to adopt him we thought carefully, not only about how we could care for him together, but what should happen if we should both pass away or if we should separate.  We had a similar chat before we brought Norman home just over two months ago.
 

It may sound over the top and morbid to some, but Charlie and Norman are more than “just pets” to us. They are a core part of our family unit (yes, we are those people who refer to ourselves as their mummy and daddy) and if something unforeseen should happen, we want the best for them.

The question of pet arrangements and ownership on divorce can be a serious and heart breaking issue when it arises. The PDSA’s latest annual animal wellbeing report reports that in 2023, 53% of UK adults owned a pet.  Disputes about a pet’s arrangements following their owners’ separation are not unheard of, and, with the number of households who have a pet, it is an issue that comes up in many cases. I know of many proud “DINKWADS”, who view their pets as their children (and many friends with children, who hold their pets in just as high regard). Those cases can be particularly difficult to navigate when the couple separate. 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  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.  

Whilst this is the position in the UK, a number of other jurisdictions take a different approach. For example, earlier this year family lawyers in British Columbia, Canada welcomed changes to how the court will consider the arrangements for pets on divorce.  Previously, the courts there adopted the same approach as the English courts. The courts will now consider a person’s ability and willingness to care for an animal (taking a more welfare based approach), relationships between a child and an animal and risks of animal cruelty to help determine pet ownership.

France has recently introduced new legislation that changes the definition of animals from “moveable goods” to “living and feeling beings”.  Similarly, since January 2022, pets in Spain have been considered sentient beings in legal cases such as divorce, and to “have a special relationship with man”. On divorce or a legal separation the courts in Spain must take into account the family members’ best interests and the welfare requirements of the pets in question. The court can even make orders as to how the cost of the pet can be shared, and a court in Vigo, Galicia did just that in a ruling in 2022, ordering that the pet should remain with the wife and requiring the husband to pay €40 monthly towards the pet’s expenses, with any extraordinary and veterinary costs split between the two.

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 and 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 is no suggestion that the law in this regard is going to change anytime soon, so what can couples do to avoid protracted disputes?

• Discuss how you’ll approach unforeseen events before you bring your pet home
  
  Our pets are sentient beings and a huge responsibility and commitment.  Anyone considering making such a commitment should consider carefully if it’s something they can manage; both financially and in terms of the time needed to care for the pet.  As part of those discussions, think about how you will care for your pet if on holiday, if unwell or if the worst should happen, and the pet’s carer was to pass away.  There is no reason why such discussions shouldn’t include a hypothetical separation.  This is simply a responsible way to approach pet ownership.
   
• “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 (and yes, we in the team have had cases involving such issues!) 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.
  
  A client I worked with some 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. 
   
• 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 (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. 

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 authors

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 a mediator and works with couples to help them resolve practical and legal issues arising from their separation without the need to attend court. In her spare time Stacey enjoys walking her lurcher, Charlie and Norman.