Whilst a lot of the focus during the separation of a married couple may be on the children or financial matters, a common issue that consistently comes up is what will happen to the family pet. We understand pets are very much part of the family and there are often deep bonds formed with family pets causing the question of what will happen to the family pet to be a difficult and sometimes an acrimonious question.
Currently, the law of England and Wales does not give a great deal of weight to the emotional aspect of what will happen to the family pet. Family pets are currently treated as a ‘chattel’. A chattel is a piece of personal property such as furniture. As such, the question of what will happen to the pet is dealt under the same framework of the division of chattels within the family home. However, there are occasions where who the dog is to live with post separation become one of the main disputes within financial proceedings.
The treatment of family pets differs in other countries, in some states in the US, the court will consider factors such as a pet’s best interests and deal with ‘pet arrangements.’ In European countries such as Spain, Portugal and France, court are required to factor in the wellbeing of the pets when considering the dispute.
In the recent case of FI v DO, the parties were in dispute about their golden retriever dog. Husband argued that the dog belonged to him as he had paid the £1,200 to purchase the dog and claimed he was a registered Disability Dog to assist with his mental health challenges. Wife argued that the dog was the family pet purchased with family money, who was bonded with the children and as a result of the dog living with her for the 18 months post-separation that she was the primary caregiver for the dog. Interestingly, Husband forcibly removed the dog at one point; however, the dog ran home to the family home. The Judge found that the dog was not actually a disability dog, and that Husband saw the dog as an income stream. The Judge also found that the parties had jointly purchased the dog but noted that this was not as important as who the dog saw as their carer. Given that the wife had been caring for the dog for the 18 months post separation, the court ruled in favour of the wife. The Judge, however, did note in this case that ‘the dog is a chattel. At times it seemed to me that I was in the realms of a Children Act application which featured the dog when the wife was being cross-examined about the dog’s welfare and shared care arrangements.’ The Court therefore are still keen to ensure that parties do not get dragged into the matter of dealing with arrangements for pets any further than the treatment of a chattel.
There is an argument that given the emotional weight that parties place on family pets the law does need to change to reflect this. However, there are also arguments that the possibility of parties dealing with arrangements for family pets will increase parties’ legal fees and the acrimony between them.
What can parties do to address the issue of pets on separation?
Parties are able to draft a ‘pet-nup’ which is a nuptial agreement that would deal specifically with pet ownership. This will assist the parties with setting out their expectations for who would care for the pet on separation, who would be responsible for the financial side etc, and it may assist in the party’s avoiding litigation on the matter in future. It should be noted that ‘pet-nups’ are not legally binding in England and Wales but could be considered as persuasive evidence by the Court.
Looking forward
This matter is possibly subject to change in England and Wales as a new Working Group on Pets on Divorce and Separation have been having discussing at the House of Lords to discuss some of the pressing issues affecting pets and their treatment on the breakdown of a marriage/relationship. It will certainly be interesting to see if and how this area of the law may change.
Contact the Family and Divorce team to understand how you can protect your family, four-legged or not, should the time arise to do so.