WHO GETS THE PETS WHEN YOU DIVORCE OR SEPARATE?
As a nation of pet lovers, whether it’s the adults in a relationship or the children of the family, the thought of being separated from a beloved pet when a relationship breaks down can add to the distress, anxiety and turmoil of a separation.
Unsurprisingly, dogs and cats are the most fought over pets in divorce, followed by horses, rabbits and guinea pigs. An estimated 12.5 million households in the UK have at least one pet, and amidst a declining birth rate and with the rise of the TikTok trend of DINKWAD (double income, no kids with a dog), it is and will continue to be an increasing issue for couples.
High-profile cases have seen Amber Heard retain Pistol and Boo as part of her divorce from Johnny Depp, whereas Ant McPartlin continues to share the care of labrador Hurley with ex-wife Lisa Armstrong.
How the law regards pets in a divorce
Yet the law lags behind some other jurisdictions when it comes to putting the best interests and welfare of the pet(s) front and centre in the event of a couple’s separation.
Where a couple separates, and they cannot agree on arrangements for the children post-separation, either party can ultimately make an application to the Court for the Court to make a Child Arrangements Order, which would set out, amongst others, how much time the child(ren) spends with both parents. There is no law that currently deals with pets in the same way.
In the eyes of the Court and as a matter of law, pets are items of property, and there is no difference between the family dog and, say, a car, items of furniture or kitchen appliances. It is sadly not about what is best for the pet, unlike children, whose best interests are paramount when considering their arrangements.
This may be an evolving area of law over the coming years, and the welfare of the pets is considered and protected in law. In other countries, Courts are beginning to consider the welfare of pets and (to use a term long established for children disputes) “the ascertainable wishes and feelings of the pets..”, but we’re not there yet.
Currently, with a divorce in England and Wales, the Court hopes and expects that the couple can agree between themselves on how household contents are divided, including what should happen to the pet(s). The best interests of any children in the family are the Court’s paramount concern, and pets often mean more to the children than anyone. Still, where the Court has to deal with disputes over the division of contents because the couple cannot agree themselves and invite the Judge to adjudicate, the pet is just another item on the inventory of household contents to be shared.
The recent case of FI v DO (which, of course, involved the family dog) may have signalled a change of judicial approach, with the Court expressly considering the dog’s welfare and past treatment as more important than strict legal ownership, and awarding him to one party so that the dog could be in a “safe place and where he belonged”. Whether this case is an outlier, peculiar to its own facts, or simply marks a greater willingness on the part of the judiciary to take a broader view as to pet ownership remains to be seen, and time will tell.
DETERMINING PET OWNERSHIP
The Court can decide, however, which person owns an animal. Who the owner of the pet is and whose personal property it is can sometimes become blurred. The decision can be influenced by who purchased the pet / whose name is any invoice (irrespective of who the pet was purchased it for) / is registered as the owner; who is the point of contact on any micro-chip, at the vets, or with the Kennel Club ; whose name is the insurance policy in; who has catered for the pet to date, and met its expenses.
Ownership will be determinative with a non-married couple. There remains no law which was purposefully designed for the affairs of non-married couples who separate. We have to rely exclusively on contract, property and trust law to decide how ‘assets’ are divided.
With a married couple, the Judge has a greater discretion to achieve what is fair. When it comes to contents (and therefore pets), a fair (which does not necessarily mean equal) sharing of the contents, the Court strives to enable both parties to set up a new home post-separation. With the Court’s paramount concern being the best interests of the children, with those children often devoted to their pets, the Court may not want to separate children from the pets.
In some cases, it has been known for ownership to be held jointly, to continue to be held jointly, and ongoing costs connected with the pet(s) shared.
Pet-Nups
It can be difficult dealing with pets when a relationship has broken down. All the more reason to try and agree things in advance, whether in a cohabitation agreement (unmarried couples) or pre-nuptial agreement (married couples). That way, if the relationship were to break down, the couple already have a written agreement setting out what should happen to any pet(s). Indeed, the Law Society now recommends a Pet-Nup agreement specifically and exclusively dealing with any pet(s), conscious of an estimated 25% of divorces now involving a pet(s).
A Pet-Nup can deal with not just ownership but arrangements for the ongoing care of the animal and how expenses for the animal are going to be met.
Pets in Rescues
Remember, too, that pets can be sensitive creatures, picking up on tension and change in the home, so remember to think about the pets and minimise disruption and distress for them.
Statistically, 15% of pets end up with a family friend, 12% to other family members, and sadly, 6% end up with rescue charities, with four pets taken in by Blue Cross every week following relationship breakdown, and no one able to care for the pet(s) post-separation.
How we can help
At THP we have years of experience and expertise helping people, married or unmarried, find a solution that works for them in the event of a relationship breaking down, and putting the right planning and agreements in place at the start of a relationship to help avoid a dispute in the event of a separation.
For a confidential discussion about divorce, separation, pet-nups or any other aspect of Family Law, please contact Richard Rodway in our Henley office on T: 01491 570 900, or Julia Drury in our Reading office on T: 0118 975 6622.