Pets on Divorce

Pets during separation

There are lots of aspects to consider when a relationship breaks down such as children, finances and housing. However, the family pet also needs to be considered particularly as it is usually loved by both parties. Our specialist family solicitors are able assist you through all aspects of a relationship breakdown, and this guide will answer some common queries regarding the family pet, including how the courts can treat larger animals such as horses.

The legal position of pets

The family court views pets as ‘chattels’ which is essentially a personal belonging. Whilst during children proceedings the courts have to consider the welfare of the child, there is no such requirement for courts to consider what is best for the family cat or dog. The court would consider the pet in the same way as a car or a sofa. Whilst pet lovers may understandably be upset at this, it is how the court will approach the issue.

Married couples

The family court will consider pets during financial proceedings given their legal status as chattels. The court typically does not want to spend a lot of time determining who will look after the family pet but it may ask questions along the following lines if it needs to make a determination:

• Who purchased the pet?
• Who meets the day to day costs of the pet?
• Which party is in a position to care for the pet? (For example, does one party work remotely or is one party moving into accommodation where pets aren’t allowed).
• The court can consider the impact the pet has on a child’s welfare.

The family court only has the power to order that a pet lives with one of the parties, and will not make any orders about the other party being able to see the pet or order a ‘shared care’ agreement. However, the court can take into account the cost in looking after the pet in any calculation around a spouse’s income needs.

Therefore, we often recommend our clients look at other approaches to the client to reach an agreement to avoid asking the court to make this decision. This can be done in various ways such as through pre or post nuptial agreements or meditation, as the blog will outline later on.

Cohabitating couples

If you are not married but living with your partner, the position is even more blunt. The usual position is that the person who purchased the pet is the legal owner of the animal. The dispute would be heard in civil court not the family court. Unlike the family court, the civil court does not take into account any relationship a pet has with any children or who pays for the pet’s costs.

These disputes can be complicated if the pet was intended as a gift to the other partner or it was jointly purchased, the court’s decision will likely come down to the available evidence.

If the matter was taken to the civil court, there is also the possibility the court would make an order where neither party is happy with the outcome. For example, the civil court can order that the pet be sold and proceeds divided. Furthermore, court proceedings can be expensive and lengthy and should be avoided where possible.

Offers can be made to buy the pet off the other partner to transfer legal ownership. However, this is often met with resistance if both parties have a strong emotional connection with the animal.

In order to help avoid such disputes, couples can include a clause regarding the pet in a cohabitation agreement or, as a way of resolving such disputes, they can attend mediation.

Pre/Post Nuptial Agreements & Cohabitation Agreements

As outlined above, one way to prevent ownership of the family pet becoming an issue following separation is to have a formal agreement in place with your partner.

For married couples, these can be done before the marriage, a pre-nuptial agreement, or during the marriage, a post-nuptial agreement. Whilst such agreements do not bind the English courts, a judge is likely to lend weight to such an agreement where, for example, the wife is to look after the family dog. The clauses within these agreements are sometimes referred to as ‘pet-nup’ provisions. These agreements can provide some reassurance to a spouse who holds a closer bond to the pet should the relationship end acrimoniously.

If you are not married, but cohabiting with your partner, clauses regarding the pet can be included in a cohabitation agreement which would be given weight to by a court in the event of a dispute.

Maguire Family Law offer a range of services including advising on and drafting pre and post nuptial agreements and cohabitation agreements so please get in contact with our team if we can help you.

Mediation

Another option if a dispute around the family pet arises is mediation. At Maguire Family Law we have a specialist mediator who can assist couples on all issues relating to a relationship breakdown whether married or cohabiting.

Parties will be asked similar questions as they would be by the court as outlined earlier in this blog. An advantage of mediation is that the parties can discuss this in detail if it is a matter which is important to them. For example, a couple may be able to come to an agreement around a shared care agreement or separation the pets if there are multiple ones. However, this would need to be balanced against causing the pet unnecessary stress. Parties can also discuss what is best for the pet which is something the court would not consider.  Mediation provides a space to navigate the matter more sensitively than the court process.

Larger “pets”

There are also situations where the definition of a family pet could be expanded to animals such as horses. Whilst the general approach is the same, the courts can have cause to consider the upkeep of such animals.

In one reported case (S v S [2008] EWHC 519 (Fam)) the court considered a wife’s wish to keep her horses following her separation from her husband, which had been an important part of the wife’s life.

The court’s view was that it would have been unreasonable to have awarded her means to keep the horses if the husband did not have the financial means to support her in doing so. The court determined that the husband did have the means for now but informed the wife to plan ahead as it would likely stop being reasonable if the husband were to be made redundant or to retire.

Therefore, whilst commonly these disputes relate to the family dog or cat, there are situations where larger animals need to be considered.

Summary

It is difficult for separating couples, whether married or cohabiting, to separate their strong emotional bonds with their pet and understand how the court views them.

Our team at Maguire Family Law can assist with all aspects of a relationship breakdown so please contact us if we are able to assist you further.