Pets in Divorce. When to Consider a Pet-Nuptial

It is safe to say that Britain has a long-held reputation as a nation of animal lovers. Indeed, British animal protection laws date back to 1822, andwe have remained just as obsessed with our pets as ever before.

Each year the Pet Food Manufacturers Association, PFMA, commissions research into the UK’s pet population. In 2021 due to the Pandemic, the survey moved online. It found that more than half of Brits keep a minimum of one pet. To be more specific, British households host 12 million dogs, 12 million cats and, amongst a wide range of more exotic beasts, some 600,00 hamsters and 400,00 tortoises and turtles.

When things go wrong

Our pets are our family, and when things go wrong, we often look to our pets for companionship. They provide comfort and loyalty. It is no surprise, therefore, that disputes over pet ownership within divorce or separation have become common features in court. People spend tens of thousands to keep their beloved pets, often disproportionately to other prized possessions and chattels in the home.

In a recent case, for example, the husband left the family home leaving Freddie, the dog, behind. It was clear to my client that this was a declaration that Freddie belonged to her, and she received great comfort in this. This belief was reinforced by the fact that the husband did not seek to remove Freddie the dog when he collected his personal belongings.

My client had been greatly upset by the breakdown of the marriage and the split of assets, but again she had the security of Freddie being with her. Child arrangements were agreed amicably, and the parties were able to jointly explain to the children what was happening, they were loved, and would get to enjoy both parents in a happier place in their own separate homes. The tension at the family table would be gone.

Cutting up a mariage certificate: a divorce concept

The husband did seek a timetable for when he could have Freddie for walks and stayovers. Problems arose unexpectedly partway through the carefully negotiated financial settlement. During a prearranged access visit/walk?, the husband refused to return Freddie claiming he had paid for Freddie and various medical procedures and thus Freddie belonged to him.

My client was distraught. The thought of not having Freddie back home with the emotional support he provided was heart-breaking. In a panic, my client, the wife, called the police, who said it was a matter for the civil courts. In distress, the wife completed various court forms and paid the court fee, but the civil courts rejected the case and said it was a matter for the family courts as part of the divorce and financial proceedings.

What Does the Law Say?

Unlike children as part of the family unit, the family court would have to treat a pet as a ‘chattel’. Chattel means an object or property, other than freehold land such as furniture or the golf clubs. Pets have no special status for being loved as a member of the family, and the courts do not recognise and often give little or no regard to the strong emotional attachments often formed with family pets, just like as with a child of the family.

Nevertheless, the court can order a transfer of ownership, the same way it would for pensions, investments, a motor vehicle and property. The court can even make provisions for the maintenance of the family pet when calculating income needs of a party as part of the overall financial award given by one party to the other, so that the cost of vet bills, vaccines, food costs, grooming costs and dog-walking bills can be ordered to be paid by one party to the party that retains the family pet.

For couples who are not married, the court may work on strictly legal principles of contract law, i.e., give the pet to the person who paid for it or under whose name it is registered with the vet, but with co-habitation, there are no maintenance orders for a party to contribute to the costs of the pet.

Regrettably, both in divorce and co-habitation cases, many judges are reluctant to make an order regarding pets and will not spend a lot of court time considering which party should be allowed to keep the family pet. This is because the court views the financial matters and child arrangements as much more important issues and give priority to them, disregarding the trauma and emotional impact that losing a beloved pet can have following the parties’ separation.

In respect of pets, again the court would have power to order a pet psychologist – the equivalent of a horse whisperer. This would allow a court to understand the traumas that a pet may go through, following a separation, such as experiencing shouting, angry or aggressive demeanours and indeed to be able to recognise with whom the pet is more relaxed with and cared for by. Sadly, the cost and time and the lack of understanding means that the court do not engage such experts.

Is there a solution?

Clearly the court is neither able nor willing to take a pet’s wellbeing into account, nor even to settle disputes for formal shared arrangement.

Scales of justice and a legal gavel

The court does have power in most circumstances to order expert reports to obtain guidance about true values of pensions, a clear value of family businesses and shareholdings and in children matters, to have social workers and child psychologists guide them on where the children should live, the type and extent of contact with the absent parent and information about their emotional wellbeing.

To avoid these difficulties, a prenuptial arrangement for couples planning to marry or, for unmarried couples, a cohabitation agreement, would most likely resolve the issue amicably. Such agreements can set out any arrangements including:-

  • Who the pet belongs to
  • Who is to care for the family pet
  • How the costs of the pet’s care are to be split
  • Who the pet will live with
  • Visitation rights
  • Who would walk the pet
  • Who pays for its food, vets bills, grooming costs
  • What is to happen in the event of a replacement or new additional pet(s)

Prenuptials and cohabitation agreements are not used much in England and Wales and are not automatically enforceable. Nevertheless, they would carry weight with the judges if entered into fairly, and would give a judge a clear indication of what the parties had intended at the start of their relationship, and what reliance either of them may have made moving forward when bonding with their pet.

Of course, a pet can sense changes in its environment and couples must be sensitive to this when seeking to solve shared pet arrangements and ownership.

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