21 November, 2022
It is estimated that at least 5 million homes have domestic pets and given that further statistics show that 1 in 2 marriages end in divorce, it is not surprising that Family Law practitioners are seeing an increase in disputes regarding family pets. Separating couples can often agree the arrangements for the care of their beloved pets, often agreeing a shared care arrangement, but not always. What remedies are available in such a circumstance? Traditionally a Judge would not become involved in any dispute about who got to keep Fido & Felix. However, times are changing and increasingly Judges are being asked to determine who should keep the domestic pets, after all, they can be quite valuable as well as being much loved by both parties.
The legal position is that a family pet is treated by the court as a 'chattel' that is, an item that is owned, like a car and ownership of the pet can be transferred from one party to the other, if not by agreement by order of the court.
We have seen publicity surrounding separating 'celebrities' who are arguing about the custody of their pet. Ant McPartlin and his ex-wife were such a couple and eventually agreed to share 'custody' of their Labrador.
Parties would be expected to consider attending mediation to reach agreement, if no agreement can be reached, the court would consider the circumstances of the acquisition or purchase of the pet; for whom the pet was originally intended, if the parties are not married and what would be a fair and reasonable outcome for the parties. The court would also have in mind any impact the decision would have on the children of the family, particularly if the children have a close bond with the pet. A court seeks to minimise any disruption to children that their parents' separation has caused, which can often include the prospect of being separated from their pets. The child's best interests are the courts paramount consideration in any proceedings between the parents.
There is very little case law to refer to when seeking guidance as to the court's approach, though there is some guidance to which we can refer;
IX v IY (2018) EWHC 3053 (fam)
In this case, the parties owned 2 dogs, the court decided they should keep one each, commenting,
"I believe that one dog is in England and one in France. That seems to me to be fair. If the parties wish to argue over their access to the other dog, I would suggest that they place the dispute before a mediator or arbitrator, perhaps one with experience of dogs"
RK v RK (2011) EWHC 3910 (fam)
The wife made a claim in the divorce proceedings to a painting and a family dog. Mr. Justice Moylan held;
"On the latter issue, I do not consider it appropriate to make any order in respect of one of the dogs because, on the evidence I have heard, they would seem to have been looked after principally by the husband"
When acquiring a pet, couples may need to consider what would happen in the unfortunate event of their relationship breaking down, after all, pets can live a long time, a cats average life span is 15 years, a dog 12 years and a pony anything up to 40 plus, seemingly a tortoise may outlive their owners, they have a lifespan of up to 100 years!
Thought should be given to who the pet should be registered to, who will register the pet at the vets, and take out pet insurance. A 'pet-nup' is good relationship planning, in the same way that a pre-nuptial agreement or post nuptial agreement can often give parties peace of mind, knowing that they have taken steps to clarify any arrangements hoping they will never need them. As we all take out house insurance, or life insurance, we do not want to ever need it, but it is there just in case. A 'pet-nup' can give you both reassurance that you have agreed any arrangements, just in case. As with all such agreements, the court will take into account the intention of the parties at the time the agreement was entered into, and it is rare for the court to disregard agreements properly entered into by the parties.
If you wish to discuss making a 'pet-nup' or if you are facing a separation and worrying about your family pet(s) do contact one of our Family Law Team for expert advice
For more information contact Nicola Rushton in our Family/Divorce department via email or phone on 01254 580 000. Alternatively send any question through to Forbes Solicitors via our online Contact Form.
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