Many of our clients are surprised to learn that in England and Wales there are no special rules as to how to deal with a family pet during divorce or separation. Rather the animal will be treated as an item of personal property and the dispute will be dealt with using the same principles which will apply to ordinary assets such as the family car or furniture. The Court does not consider the animal's welfare or needs when allocating it to either one party or the other. Rather a court will consider who is the “rightful owner” of the animal, looking at matters such as who purchased the pet, who financially maintained it and whether it was a gift. For most pets, the financial aspect of looking after them is relatively low therefore this won’t be a consideration. However, there are some animals, such as horses which come with large a maintenance expense and this will need to be factored in when considering which party, they should be assigned to.
This uncertainty can intensify the difficulties experienced during separation which is already a stressful and emotional time. The pet can be used as a bargaining chip and result in long drawn out negotiations.
This is not the position taken in all jurisdictions. In contrast to the position in England and Wales, the American state of Alaska has adopted a different approach, treating pets more like children. Judges there, are now required to take into consideration "the well-being of the animal" when deciding which party should get custody. They also have the power to grant separating couples’ joint custody or visitation rights.
We encourage clients to consider from the outset what should happen to a pet in the event of separation with a "pet-nuptial" agreement just as you would consider a pre-nuptial agreement before marriage. This can set out who "owns" the pet and identify who will continue to be the person responsible for the pet in the event that the relationship breaks down.
If an agreement was not entered into, we support and encourage clients through mediation to resolve the matter. A court will simply assign ownership of the animal to one party or the other. Whereas an out of court agreement will however allow for more opportunity to be creative with the arrangements. For example, you may be able to achieve some sort of "shared care" arrangement. We are conscious of the importance bond our clients have with their animals and we are sympathetic when supporting our clients to resolve this sensitive issue.