Family Pets and Divorce

Family Pets and Divorce

The PDSA say that in 2023 statistics show that 53% of UK adults have a pet. 

The question of what happens to them in the event of divorce can be stressful, and at times heart rending for those involved. Disputes as to the arrangements following separation are relatively common, with the issue coming up in many cases. 

It can come as a complete shock to learn that in the English and Welsh Courts, a pet is treated in the same way as an item of furniture, with no special provision in place to look at the welfare of the animal in the future.

Various jurisdictions around the world have a more progressive approach.

France has recently introduced new legislation changing the definition of animals from “moveable goods” to “living and feeling beings”.

An Argentine Court in September 2022 recognised a “visitation” agreement for two dogs, commenting that “animals, especially pets, are sensitive beings, that feel, that miss, that rejoice, that suffer and that acquire habits, so there is no doubt that the changes brought about by the separation of the spouses will also affect them”

Pets in Spain are considered as “sentient beings” in legal cases such as divorce, and to have a “special relationship” with their owners. Spain’s Civil Code was updated in 2021 to clarify that animals are not “things”, and the Spanish Divorce Court must take into account the family member's best interests upon divorce and the welfare requirements of the pet in question.

In Portugal, any couple getting divorced must state on the divorce application whether they own any pets, and if they do, what will happen to them. 

In California, the Court has to power to make an Order requiring a party to a Divorce to care for the animal, and whether ownership is sole or joint.

The English courts are lagging behind in their approach, with the treatment of pets as “personal property” being unreflective a pet's importance to the family unit.

So how should one deal with pet ownership in the event of separation?

Some couples enter into a “Pet-Nup”, usually in the form of a clause in a Pre-Nuptial Agreement that deals with what happens to a pet in the event of separation. 

Occasionally a freestanding “Pet-Nup” can be created, once again setting out the arrangements for the pet in the event of the parties separating.

Strictly speaking, Pet-Nups are not enforceable in the United Kingdom, in the same way that Pre-Nuptial Agreements are, strictly, not enforceable.

There is nothing in English law that says that a court has to uphold a Pet-Nup. Such a document would, however, be considered as one of the “other factors” to be taken into consideration under section 25 of the Matrimonial Causes Act 1973, and by recording the parties wishes and agreement, couples may find discussions and negotiations easier with reference to that agreement come their relationship breakdown.

Mediation 

Mediation is both voluntary and confidential, and if agreement cannot be brokered by the parties directly negotiating between themselves, a neutral third party mediator often enables a solution to be found.

If such negotiation is unsuccessful however, then as an alternative to going to Court, parties may refer the issue to Arbitration. 

Arbitration

The arbitration system allows for discrete issues to be considered, and accordingly where an arbitrator is appointed by the parties to make a binding decision, it is possible to arbitrate solely over the arrangements for the pet/pets concerned. 

Court

The last result would be for an application to Court as part of an overall Financial Remedy Application

As stated above, pets are regarded as “property” and in deciding how to deal with the animal, the court is not required to consider the animals welfare or treat it as a sentient being. In deciding who owns the animal, the Court will consider factors such as who paid for the pet, who the pet is registered to, who pays for pet insurance etc. These factors are not necessarily reflective of who deals with the care of the pet.

In determining Financial Remedy Applications, the Court is required to consider the welfare of any child when considering how assets are to be divided, and this could be relevant where a child has a particular bond with the animal concerned.

The best advice, however, has to be that anyone considering making a commitment to the purchase of a family pet should consider carefully what will happen to it in the event of unforeseen circumstances such as relationship breakdown, so as to lessen the likelihood of dispute if the parties then separate.