Pets, especially dogs, are often much loved members of the family. The issue of who keeps them when couples separate or divorce is an important consideration. Recently the media reported on Ant McPartlin’s custody dispute with his former wife over their Labrador named Hurley.
Pets are legally classed as ‘chattels’ in divorce proceedings in England and Wales. This means that they are considered by the court in the same category as personal belongings, cars and general contents of the family home.
The Family Court in England and Wales has no requirement to consider the welfare of a pet. In Spain however the Family Court must consider the pet’s welfare during divorce proceedings. France also now considers pets as ‘living beings’ rather than ‘chattels’ and Portugal requires parties to declare if they have any pets at the start of divorce proceedings and if so, the arrangements for them on separation.
Many couples can agree their own arrangements for their pets and often cooperate to share the care. If an agreement is not possible, it may be beneficial and cost effective for parties to engage in mediation or solicitor negotiations. If an agreement still cannot be achieved, a party may issue court proceedings or agree to use the arbitration process particularly if pet arrangements are a discrete issue.
The court has the power to make orders as to chattels and direct for a transfer of ownership. This is also applicable to family pets.
The starting point when considering a pet will be factors such as who paid for the pet, who is registered as the legal owner, who pays for the pet insurance and food etc. The only exception is if there is clear evidence the pet was subsequently gifted to the other party. There is some case law relating to pets including one case where the judge decided that a transfer of ownership was not appropriate because the other spouse had primarily funded and looked after the dog. In another case the parties owned two dogs and the judge decided they should each keep one.
The court can also calculate maintenance costs for pets and consider this when determining income needs as part of the overall financial settlement. In one case a judge awarded the wife maintenance to include outgoings for her three horses.
Whilst the court has no duty to take the welfare and best interests of the pet into account, there are arguments a party may be able to make to justify why they should keep the pet, including if the animal is a service dog or provides therapeutic support and if a party can show that the welfare of any children would be impacted by a change in ownership of the pet.
The Law Society has suggested a ‘pet nuptial agreement’ may be beneficial to minimise disputes over pets.
A ‘pet nup’ is an agreement between the parties entered into during their relationship to set out details as to ownership, care, vet bills, day to day costs and ultimately, what is to happen on separation. The law does not currently treat such agreements as being legally binding. However, they are likely to be taken into account by the court should future conflict arise.
Contact us at enquiries@wellerslawgroup.com to discuss your circumstances.