Getting a divorce is undoubtably a stressful time, however even more so when deciding upon the division of pets. The emotional attachment we build with our pets can be argued to mirror that of a family member or child in some cases, so deciding who is going to keep them upon divorce can result in very contentious and acrimonious proceedings as separating couples argue over ownership.
Under the current English Law, pets are categorised as “chattels”, the same as basic furniture and it can be fairly simple to divide up property such as furniture and artwork on divorce. However, pets have an emotional attachment and are more likely to be the subject of a dispute. Where disputes arise, parties are encouraged to seek to mediate to come to an arrangement and keep costs down. However, failing that, it has become more common in recent times to see pet disputes in court.
As pets are considered chattels, the courts task is to identify the rightful owner. Therefore, weight is initially given to if one party owned the pet prior to marriage. This is again similar if one party purchased the pet. However, if the pet was a gift, there may be more weight given to the recipient of the pet. Factors such as who the pet is registered to and who is registered as a contact at the Vet will also be considered. Surprisingly, whilst who funded the pet and looked after it will be considered, the party who owned the pet prior or purchased it as a sole owner will likely succeed when deciding where it will go upon divorce.
A court will also consider children where they are involved. Especially if they are particularly close to the pet then the parent who has custody of the child may also be awarded the pet as it would be in the best interest of the child. However, where shared care of children is the norm, the same for a pet is unlikely to be a realistic or practical decision whereby the courts are reluctant to get involved in disputes over pet contact and as such unless a solid agreement can be made by both parties, a shared care plan with pets may cause further disputes later down the line.
Potential reform of the law
For years animal-loving lawyers have sought reform in this area of law in the UK, lobbying to see pets classed as more than an inanimate object. In the case of Alaska in January 2017, a court ruled that the welfare and wellbeing of a family pet is a crucial consideration when determining who should keep it.
Calls for reform include for disputes to be resolved by mediation and arbitration whereby the courts or arbitrator should have regard to the needs of the pet as well as who feeds, walks and plays with them. This would also bring the UK more in line with other countries such as Spain, France and Portugal where the pet’s welfare is considered upon divorce.
One way to avoid disputes arising over pet ownership on divorce is to enter into a “pet-nup”. This is similar to a “pre-nuptial agreement” and can set out who will deal with the ownership and expenses of the pet upon divorce. This type of agreement has become more popular in recent years, and it provides the court with evidence of the initial intentions if there is a dispute.
Ruby Holland, Trainee Solicitor at Ashfords LLP.