Who keeps the family pet in a divorce or separation?
The process of a divorce or separation can be difficult with children involved, but similarly so with pets. Tilly Bailey & Irvine’s Family Law expert Wendy Beacom explain how it is decided who keeps the family pet in a separation…
It is has been suggested that there has been an increase in pet ownership since the Covid-19 lockdown came into being. People are at home more (for a number of different reasons), and therefore have the capacity to look after a pet and the demands they bring.
Further with Christmas shortly upon us, the slogan “a dog is for life, not just for Christmas” comes firmly to mind. This, of course, can extend to all pets.
In my work as a matrimonial lawyer, I see many disputes arising about who owns a pet. It may have been bought as a gift for one party from the other. At other times, both parties have made the joint decision to be responsible for a pet and, in other circumstances, it may become more blurred where one party may have purchased the pet but the other party has undertaken the day-to-day care.
What happens if there a dispute regarding ownership? A pet is defined for the purposes of matrimonial proceedings as a chattel, i.e. a personal belonging. How then can a decision be made as to who should own the pet upon a dispute arising within the matrimonial arena?
A chattel is property which a court can make an order as to who should own it. This ordinarily extends to the contents of the family home. This is an area where myself and colleagues find ourselves spending a significant amount of time trying to resolve often with lists of contents trying to compromise who gets what but if no agreement can be reached, then the court will be asked to make a decision.
The court has the power to order a sale of property which in relation to the contents of the house is one thing but it is very unlikely that the court will order a sale of such as a dog or a cat. Therefore, for a judge it will be about making a decision based on the facts of the case as in most other areas of family law. That is taking into account the background to the purchase and the subsequent ownership of the pet bearing reference to factors including, but not limited to:
Who is responsible for the pet insurance/veterinary bills
Who is the pet registered to
What are the practicalities of taking care of the pet
Whether there are children involved who have a strong emotional attachment to the pet
And so on.
I know that pet-nuptial agreements can be prepared thus setting out what should happen in the event of the separation of the parties. Indeed the Blue Cross has such as this on its website. Would a court take a pet-nuptial agreement into account? In the same way that a pre- or post-nuptial agreement is a factor that a court can take into account when determining how financial matters should be resolved upon a marriage/civil partnership breaking down, so too could the court take into account a written agreement regarding a chattel.
Whilst a pet-nuptial agreement is not technically binding, it is highly likely that the agreement will be upheld if certain factors are in place, such as whether the agreement was freely entered into by the parties, whether the parties received independent legal advice in respect of the provisions of the agreement, whether the parties fully understood the implications of the agreement, whether the agreement is fair and protects the interests of any children involved as well as the interests of the pet and so on.
Chattels, especially pets, are an emotive subject and, therefore, thought should be had as to what should happen. Is there a possibility of compromising/ look for an alternative way forward, eg if you have children could the pet travel with them between households? For some children, the family pet helps with the anxiety that arises from their parents’ separation and thus can be a calming influence upon a difficult time for a child. Could there be a shared care arrangement with one party who may be working from home during the week for example having the care of the pet during that period and the other party having the pet when not at work?
Compromise often seems elusive but for most parties having something that they can work with, rather than having something forced upon them that they really do not like by a court, is always a much better option and likely to work better to in the longer term. In any event, parties should always attempt to negotiate arrangements in the first instance and even consider approaching mediators who are able to deal with pet related disputes if the parties cannot reach a satisfactory agreement between themselves.
This article is written as I anticipate that this Christmas there will be a further influx of pets into family homes that may one day end up becoming a chattel whose ownership needs to be resolved upon a relationship breakdown. I hope it helps in any ongoing discussions where there is a conflict arising or to have some thought if the worst happens and a relationship breaks down.
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