Despite being regarded as man’s best friend, dogs – and of course other pets – are treated as items of personal property under English family law.
So, what does this mean for the 17million couples who own a pet in the UK, including the estimated 3.2million UK households that have acquired a pet since the start of the pandemic?
Diane Matthews, family law specialist at Woodcocks Haworth and Nuttall Solicitors, explores where the law stands on how family pets are treated during separation, and what rights divorcing couples have to their dog.
A personal possession
According to the Blue Cross, one in four divorces in the UK involve disputes about pet animals, and given the significant rise in new pets being welcomed into homes across the country, this is set to increase further.
The treatment of pets and their status as personal property in family law is lagging behind other areas of the law in England and Wales, as well as other jurisdictions.
The Animal Welfare Act 2006 sets out what’s deemed suitable for a pet, including their living environment and generally making sure that their welfare is protected, but it doesn’t give consideration to how animals are treated on divorce proceedings.
Those who disagree with the position as it stands argue that an animal is a sentient being and should therefore be afforded a greater status in English law than a chattel.
Conversely, in California the family code sets out that the court may order a particular party to care for the pet animal, while it may also assign sole or joint ownership of a pet animal taking into consideration the care of the pet animal.
The current situation
If you do find yourself in a situation where a dispute has arisen between you and your ex-partner regarding your pet, the most sensible first option is to try to enter into direct negotiation. If direct discussion does not work, you may enlist the help of an independent third party or a family mediator, which may help resolve matters relatively amicably.
The next stop would be to instruct a solicitor if neither of these attempts at resolution have worked. Receiving a letter from a solicitor may prompt your former partner to negotiate more seriously which could aid a settlement.
Arbitration could also be considered. This is an alternative to court proceedings that still produces a binding outcome through a much quicker process than court proceedings.
When to involve the courts
When all else fails, court proceedings should be considered as a last resort, as the court has the power to make orders regarding who should retain a chattel, including pets. In one case, spousal maintenance was also awarded to a wife to allow her to maintain her three horses.
When the court decides who keeps the family pet, factors considered include who paid for the pet, who has legal ownership of it – meaning to whom it is registered – and who pays for the pet insurance.
The court will not take the best interest of the pet into account, but it may be possible to present an argument based on the court’s first consideration under section 25 (1) of the Matrimonial Causes Act 1973 when considering how the parties’ assets should be divided, plus the welfare of any children of the family.
It may be possible to raise an argument that, where a child of the family has a particularly close bond with a family pet, any separation could have a negative impact on that child’s welfare.
How a pet-nup could help
Couples could enter into a pet-nup in an effort to settle the right of ownership of the pet at the outset, as well as the arrangements for the pet’s ongoing care including vet and food bills.
This is essentially a pet version of a prenuptial agreement, with the document having the ability to set out who would have sole care of the pet and any arrangements for contact with the non-caring owner in the event of separation or divorce.
Similar to prenuptial agreements and separation agreements, the law does not recognise pet-nups as being legally binding, although like prenuptial agreements and separation agreements, the court is likely to take the document into account.
Given that most pet owners do consider their pets as family members, it does seem important that the future of the pet is given proper thought. A pet-nup should therefore be considered prior to the breakdown of a relationship to mitigate any potential disputes in the future.
Diane Matthews is a legal executive based at WHN Solicitors’ Blackburn office. She specialises in divorce and separation, including resolving financial and property disputes for unmarried families, pre-nuptial agreements and cohabitation agreements.
With broad experience in financial remedy proceedings, Diane is committed to a non-confrontational approach and works to provide proactive, constructive and sensible advice from the outset, while she is also experienced in court proceedings.
If you need help preparing a cohabitation or living together agreement, our specialist solicitors are here to help. Please contact Diane on 01254 272640 or by email diane.matthews@whnsolicitors.co.uk
