Fur richer…Fur paw-rer – Pet disputes on separation

The ownership of a family pet can be one of the most emotive and distressing issues to resolve for separating couples. Reports suggest that divorce practitioners are increasingly being asked to advise on issues relating to who will keep the family pet, in the same way that they would be asked to advise on the arrangements for a child. But whilst owners may consider their four-legged companion as a family member, the Courts in England and Wales do not necessarily take the same view.

Pet ownership under English Law

The current law in England and Wales provides that a pet is a “chattel” in the same way as a TV, sofa or painting. It is therefore simply an asset to be distributed in the same manner as other material possessions. There are exceptions in divorce cases for very high value animals (e.g. a race horse or champion show animal), or if a pet is directly linked to other financial considerations, for example where the family income derives largely from breeding or showing animals. However, for the average family pet there is no legal argument to make about the animal’s welfare or needs, and the Court may be reluctant to get involved in disputes about pet ownership.

What you can do to prevent a dispute

It is possible that this will change in the future and the English Courts will start to adopt a more welfare-based test, but until that time pet owners may be surprised and disappointed to discover the reality of the position. Given the importance of pets to their owners, the concept of a written agreement about the pet and what should happen to it (sometimes referred to as a ‘pet-nup’) in the event of a separation is likely to become more common. This is most likely to be covered in a marital agreement (entered into either before or during the marriage) or a cohabitation agreement but could also be a stand-alone document.

The terms of the ‘pet-nup’ can deal with ownership of the animal and what the arrangements will be in terms of where it lives and what access the other person will have to the pet should the relationship end. It can also deal with financial considerations such as how all related costs (vets bills, food, insurance, and so on) will be funded. If there is written indication of the parties’ intentions in relation these matters it could be highly persuasive, or even conclusive, evidence if there is a future dispute.

If your spouse or partner will not agree to sign any kind of agreement, or if the terms cannot be agreed, then a paper trial of documentary evidence as to who pays for all expenses related to the animal remains the best evidence to establish ownership.

International Considerations

Whilst the Courts in England and Wales do not apply a welfare-based test in pet disputes, this is not necessarily the case in other countries. In some states in the USA, pets are not treated as objects or belongings but are given far greater status, akin to humans. Terms such as custody or access are used in the same way they are in relation to a child, and the court will examine the best interests and welfare of the animal. Switzerland and Israel are further examples of other countries which have different approaches to pet ownership.

As a result of these differences in the law, problems can arise when establishing rights in relation to pets when moving between countries or states. For example, a couple moving with a pet to England and Wales should not assume that the court here will deal with the dispute in the same way as the country where they have come from. It is therefore important to get early advice from a specialist in this area of law if ownership of a pet is likely to be a major issue on relationship breakdown.

How we can help

The strong bonds people develop with their pets mean that disputes as to ownership and access to pets can become very emotional and difficult when couples separate. Pet owners are becoming increasingly aware of the potential problems and are taking steps to try to alleviate any future arguments about their pets, in the same way that they would about financial matters. We can help by identifying possible issues and advising you on how to protect your position. This may include taking steps to draft an agreement with your fiancé(e), spouse or partner to set out what you want to happen to the pet if you separate. Alternatively, if the dispute has already arisen we can advise you in relation to the options you have to resolve the issue, such as mediation.

The family team at Clarke Willmott are members of Resolution, the national body of family lawyers committed to dealing with disputes constructively.