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Pets and divorce – who keeps the family pet?

Date:1 DEC 2017
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For many couples pets are an integral part of family life. But when relationships break down, it is not uncommon for arguments to arise about who gets to keep the family pet. So how do these disputes get resolved and what are the rules?

The law

The law in England & Wales is clear. A pet will be treated as an item of personal property such as a piece of furniture, artwork or jewellery. Where disputes arise as to who gets to keep the pet, it can simply come down to whose money was used to purchase the pet and who has financially maintained the pet. This will always seem unfair if the other party has spent more time looking after the pet or is better placed to care for the pet going forward. But there is very little, if any, room for manoeuvre in unless the pet was subsequently given as a gift.
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It can be relatively straightforward to divide personal property when couples separate, but the issue of a pet is usually far more emotive and can, in some cases, lead to long and drawn out negotiations. The pet can become a bargaining chip particularly by the person who initially purchased the pet. Indeed, where the parties have little by way of assets between them, the only issue in contention can sometimes be who gets to keep the pet. When the parties’ stand firm, this matter can often be tricky to resolve.
Whilst the financial aspect of looking after a household pet will, in most cases, be fairly minimal the opposite can be true for some pets like horses, for example. Financial provision will need to be made for income needs and, in rarer cases, a value will need to be ascribed where the parties own a valuable pet such as a thoroughbred race-horse. This may be further taken into account when considering a division of assets between the parties.

Shared care?

Sharing responsibility and care of the pet after the parties divorce is rarely seen as practical or sensible. But this should not be disregarded as an option. Whilst the courts can assist in resolving matters regarding children (which may include directions as to with whom and for how long the child will spend time), no court will become embroiled in disputes over contact with a pet; the extent of the courts’ powers lie in addressing issues over property entitlement. A party may have some sway if they take responsibility for the day to day care of the pet but this argument is usually peripheral – legal ownership will prevail in the vast majority of cases.

But could this be about to change?

A welfare-based approach to pet ownership – Alaska paves the way…

Could a case in Alaska prompt change in the way in which pets are dealt with on divorce? In January 2017, a court in Alaska ruled that the welfare or wellbeing of a family pet – a dog in this case – would be a crucial consideration when determining which party should get to keep it. Judges have now been given the power to order joint 'custody' of pets as would be the position with any children of the marriage.

This is undoubtedly a significant step and the change in the law in Alaska will be welcomed by many. But could this cause more problems than it solves? Arguably, this could lead to more litigation and cause proceedings being drawn out longer than they might otherwise have been. Might we also see couples returning to court if “custody arrangements” for the pet are simply not working out? It remains to be seen if Alaska’s courts will influence how other jurisdictions determine pet ownership on divorce.

What to do when you reach stalemate?

Where parties are struggling to agree ownership of the family pet, the dispute could resolved by mediation or arbitration. The couple should be guided by what is appropriate in the circumstances – but if they have reached an impasse, assistance may be required.

It can also be sensible to make a provision for ownership of the couple’s pets in a pre-nuptial agreement or cohabitation agreement with an additional provision that the parties will attend mediation if they cannot agree arrangements if they split up. The Law Society has specifically encouraged use of a pre-nup or ‘pet-nup’ to deal with such situations so couples can provide for any shared care arrangements and who will pay for vets bills etc.

At a time of heightened emotion and insecurity, a pet can seem like one of the few constant features in an otherwise uncertain chapter of one’s life. Battles can consequently ensue as both parties dig their heels in, in an effort to secure a much loved member of the family. If a change in the law is warranted, we could see a ‘welfare based’ assessment used to determine the ongoing ownership of the family pets in line with the Alaskan courts. And we could see an increase in legal fees spent in trying to resolve the matter, including the possibility of appointing an expert to produce an animal welfare report in some extreme cases.
This article was originally published by Family Law in Partnership