For many people a pet is another member of their family unit. As a result, it can be a very emotional and difficult decision as to how the future care of any pet shall be determined when couples separate.
With pet ownership increasing during the covid pandemic this is leading to an upsurge in pet disputes on separation and subsequently increased costs and significant heartbreak.
The legal position
Under current UK law, legally a pet is considered a chattel, as personal property, despite the strong attachments we form with our pets. This means that the law does not ordinarily treat them as any differently to other belongings we personally own, such as jewellery, cars or furniture. This can be understandably very upsetting for many.
The family court, unlike with children, have no requirement to consider the welfare of a pet or any wishes of a pet during division of assets. An English court predominately look to work out who owns the pet.
Generally, in the UK, whoever paid for the pet is likely to retain ownership. The court will however consider other factors in attempting to determine the owner, including whoever:
- Is registered with the vet or on the microchip
- Named on any contract documents
- Takes primary care of the pet, for example for feeding them, walking them etc
- Pays for the pet insurance; or
- Paying for the food or other supplies.
Where there is ambiguity over ownership, the court can consider what would be in the animal’s best interests. For example, a home with a garden would be considered more suitable for a family dog to live in than a small high-rise city flat.
The court’s powers
A court can grant one party sole ownership when there is sufficient evidence of ownership. Where there is no clear owner, the court may decide on joint ownership if this is practical between the parties, and both are deemed to be able to care for the animal. Alternatively, the court can decide the pet should be sold, if they decide neither party is able to care for the animal or if no one is willing to do so.
Options to reduce conflict
“Pet-Nup” clauses in prenuptial agreements or a freestanding pet-nup – which is a written document that details the arrangements for any pets in the event of a separation. The agreement can record the terms of future ownership and on-going expenses. A pet-nup is not enforceable in England and Wales. There is also no requirement in statute to say a court has to consider the terms. The judge can however weigh the terms of the agreement as one of the factors for consideration in asset division.
Mediation – this is a confidential and voluntary process for couples to try and discuss in a supported setting any issues between them and consider all solutions with the hope of working together to reach an agreement. The role of a mediator is to be impartial and independent of both parties and to help them both, if possible, explore options available to reach that agreement and minimise conflict. If mediation is unsuccessful it may be necessary to instruct a solicitor to help you to negotiate the custody of the pet in the financial settlement.
Arbitration – this is a non-court alternative to resolving disputes. An arbitrator is appointed by the parties to decide on a legally binding decision for them. Whilst it is usually quicker than court proceedings, there will still be a cost as the arbitrator will have a fee and both parties may also want representation from solicitors.
A court application – As with division of other assets, this should always be the last resort. Court proceedings offer a blunt instrument which can also be emotionally draining, slow and expensive. The court are required to take into account the welfare of any children of the family when considering the division of a couple’s asset and this includes a pet. This is especially relevant if a child has a particularly close bond with a pet and their separation from the pet could have a detrimental effect on the child’s welfare.
Shared care of dogs
Dogs do become very attached to people and for this reason it can be easier for them to adjust to shared care arrangements. In this instance it is important to have a fixed schedule for the arrangements and clarity on who is responsible for what. The dog’s needs still need to be met at all times and the arrangements should be designed to meet those needs.
Shared care of cats
A cat becomes very attached to its environment and therefore constantly moving to meet the schedule of shared care can often cause them distress. It is therefore recommended that a cat usually remains in a place they are familiar with.
A pet is a significant commitment and therefore regardless of the court’s approach now and in the future, we strongly recommend proper thought is given to what would happen if the owners were to separate, this can help reduce future disagreement and expense. Our family law team can provide you with guidance in relation to pet custody during separation or divorce. Call us on 0161 696 6193.