Your children may have been pestering you for what feels like eternity, and you finally decide to give in. What’s the perfect present for the whole family you think….. a pet! Similarly there may not be any children in the family but you and your partner decide that you want a pet.
Your pet becomes a much-loved member of the family, and the pet doesn’t belong to one person it’s the family pet. But what happens to the pet if you and your partner decide to separate. The emotional attachment a family has with an adored pet should not be overlooked when a relationship breaks down.
However, in England and Wales, when couples separate the family pet is regarded as a chattel i.e. property to be distributed in the agreement or court proceedings like a house or vehicle. For many this is unimaginable, a child would never be considered as property and therefore why should a pet?
Other countries such as America, Canada, France and Portugal have brought in new legislation to consider the pets welfare during divorce proceedings, to consider a person’s willingness or ability to care for the animal, and the relationship between the parties and any relevant children. They can also make orders as to the care of the pet including health needs and costs. Unfortunately, the law in England and Wales does not show any signs of modernising in line with present attitudes regarding the subject.
What can I do?
There are still steps which you can take to avoid protracted disputes in the event a relationship breakdown.
- Discuss a hypothetical situation and arrangements for the pet in the event of a separation and agree what will happen;
- Consider a clause to be included within a cohabitation or pre-marital agreement which will explicitly deal with the ownership/custody, contact/visitation, care and financial responsibilities as well as other arrangements for the pet in the event of a separation or divorce;
- Have a pet-nuptial agreement prepared which is often referred to as a “pet-nup” and is a free-standing agreement prepared which would have the same effect as a clause in a cohabitation or pre-marital agreement. This is a great alternative if this is the only issue couples would seek to regulate in the event of a separation given the courts stance on the issue, which can help to avoid additional conflict at what is already a very emotionally and often financially difficult time.
These types of agreements are not legally binding, and the court does not have to uphold the terms. However, the court can consider any such agreement as evidence of the parties’ intentions in the circumstances, which is much more persuasive to the court if it is a well thought out agreement and was prepared when the parties were on good terms.
What if we didn’t make an agreement?
If an agreement was not reached prior to the breakdown of the relationship, and there is a dispute as to the pet, parties could engage in non-court dispute resolution such as mediation to resolve the dispute.
What factors will the court consider?
It is not advisable to make an application to the court on the sole issue of pet custody. Litigation should be a last resort as proceedings can be expensive and protracted. The courts in England and Wales as previously discussed will consider the pet as property. However, the court will consider the welfare of any minor children of the family and the impact the separation from the animal will have on them. The court will also consider who acquired the pet as well as who is the registered legal owner such as the person named on the registration documents or with the vets, and who has been financially responsible for the animal. The court may give consideration as to who is better placed to care for the animal if compelling arguments can be made.
If you have any questions about this topic or would like to have an agreement or pet-nup prepared, please contact our Family Law team at Ison Harrison who can offer you support and guidance on your options on how you may proceed in these situations.
