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Who gets the dog on divorce? Who gets the dog on divorce?

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Sep 21

Who gets the dog on divorce?

Written by Ellie Foster
Legal Director

DDI: 01423 726621
M: 07548 213132
E: ellie.foster@raworths.co.uk

We’re a nation of animal lovers and if press reports are anything to be believed, this has been illustrated clearly in lockdown, with many households succumbing to the temptation of buying a pet. We all want our pets to have a happy, loving home, but what happens to the pet if a couple splits up?

This can be an emotional minefield given that all members of the family can be very attached to their family pet. Discussions about the future arrangements for a pet can be tricky and, in some cases, a bargaining chip, threatening to derail months of careful negotiation over a financial settlement.

It is often a surprise to clients that in the eyes of the law, a pet is simply considered a chattel (i.e. an item of personal property), to be dealt with in the same way as a car or a washing machine! When deciding who keeps the pet, its actual owner is often the most important factor, not who has cared for the pet, or where the pet’s loyalties lie. So, it’s important to think about ownership if there could be a dispute about the pet on a divorce. For example:

  • Who paid for the pet? Is there evidence of this?
  • Was it a gift? Again, is there any evidence?
  • Whose name is on the tag or microchip?
  • Who is registered with the vet?
  • Who is the insurance registered to and paid by?
  • Who has financially maintained the pet?

What happens to the pet can depend on the nature of the relationship. For married couples and civil partners the court has, on divorce and dissolution, statutory powers to transfer property from one party to the other. Whilst courts are very reluctant to referee disputes about personal property, it may be possible to argue that a pet is clearly completely different to a toaster and ask that ownership is transferred, perhaps with the costs of the pet’s upkeep factored into the overall division of the income/assets. For example, if the pet was bought for the children and they are to spend most of their time with one parent, a court may be prepared to do so.

In contrast, for cohabiting couples, stricter legal principles about ownership will apply with little to no scope to ask the court to intervene.

A court application just relating to a pet is risky and potentially expensive and should be approached with caution. However, it should be possible to negotiate a sensible solution for the pet, perhaps with the assistance of solicitors or a mediator if discussions are difficult. Arbitration could be used if there is a complete impasse. It is not unknown for families to agree a shared care arrangement for their pet, with agreements as to holidays, responsibility for any vet bills, insurance and other costs. This is easier for some pets than others – could a new routine cause the animal upset?

In 2017, Alaska adopted a law obliging judges to consider animal welfare on divorce and giving power to award joint custody. It remains to be seen whether other jurisdictions will follow suit but this is highly unlikely to be a priority for the UK government.

So, when taking on the responsibility of a pet, it’s important to consider the long term. Pre-nuptial and cohabitation agreements can include arrangements for existing and future pets. There is also the option of a standalone “pet-nup” or other written agreement about pets. All these agreements could cover issues such as:

  • ownership
  • financial and other responsibility for the pet during the relationship
  • what happens to the pet if the relationship breaks down
  • medical treatment and related ethics issues for injury or terminal illness

Whilst not legally binding, if the document is carefully considered, intentions are clearly documented and each party has legal advice it could go a long way to avoiding a debate when a relationship breaks down.

Ellie Foster is a Legal Director in Raworths Family, Children and Divorce team.

Published on 27 September 2021

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