It initially struck me as peculiar when I was recently asked by a client ‘who will get the dog after the house is sold and we have moved out?’
I didn’t find it peculiar because she was unsure about the law in relation to the beloved family pet, but rather because she asked me about this before enquiring what the arrangements would be for her children.
Remarkably, husband and wife in this case had agreed where the children would live but had reached a stalemate as to arrangements for Milo, the dog. Where would he live and would the absent parent even get visitation (‘walkies’) rights?
I am pleased to say that common sense prevailed and it was agreed that Milo would live where the children lived, which in this case was with their mother. Milo would then visit the father as the children did, on alternate weekends and during the school holidays.
Remember pets aren’t people – they’re property!
But what happens if you can’t reach an agreement and what does the law say about pets? It can be quite uncomfortable for a pet owner to be told that in England, pets are treated in the same way as property and assets and that there is no requirement on the court to consider the welfare of the pet concerned. This test has traditionally been applied primarily because of the financial value of certain pets such as race horses or pedigree dogs and they are treating as objects rather than members of the family.
There are few precedents for family solicitors to follow in the UK and the Court has a wide discretion when considering an overall settlement; it is therefore likely that a lot may come down to the Judge on the day.
If you are lucky enough to get a pet friendly Judge, they may afford a little extra time to consider who cared for Milo, are there children who would be upset if they are separated from him and which of the parties can afford to care for the pet? However, there is no requirement on the Court to delve this deep and they very rarely do; the question usually arises when one party may receive financial gain in keeping the animal.
Pepper the Labrador-German Shepherd cross
A divorce case in the USA is currently getting media coverage, not because the couple concerned are celebrities or there is landmark law to be made, but because the pair cannot agree on arrangements for Pepper, their Labrador-German Shepherd cross.
The tensions have reached such a high that the dog was allegedly stolen by the husband and Court proceedings by the wife were issued for the return of the dog and an injunction to prevent the husband from attending at the property where the dog lives or from trying to communicate with him. The ongoing saga has prevented the couple from finalising their divorce.
It seems that pet-custody cases are more common across the pond than in the UK, and more and more US Judges are finding these cases before them. Consequently, Judges in the US are becoming more open-minded and are beginning to take into consideration many factors that can help them reach a determination and have recently awarded shared custody, visitation and pet support payments after reviewing evidence and testimony provided by the dog’s owners and even expert witnesses regarding what is in the pet’s best long term interest.
We have a long way to go before our system evolves to that where the best interests of the animal are considered, a standard usually reserved for questions involving children. It is therefore advisable that you explore all avenues to reach a compromise with your ex-partner when making arrangements for pets.
How can you avoid conflict over ownership of pets?
- Consider signing an agreement with your spouse providing for the arrangements for the pet in the event of divorce or separation. It is always easier to sign an agreement, when you are amicable rather than waiting for things to become contentious.
- Consider the costs and practical realities of looking after a pet. Can you afford the care costs and will you be able to juggle the care around your working hours?
- Consider the likely effect on the children of being separated from the pet.
- In the same way you would try and keep a child out of the conflict, do the same with your pet. Dogs in particular are very aware of tensions and upset and exposure can affect their personalities.
If you are not married, then you will need to take your dispute to the small claims court and prove ownership of the pet in question and seek recovery of him or her. If ownership can be established, then the owner will obtain an order for recovery of the pet. If ownership cannot be established or ownership is joint, the court may make an order which gives you both equal time with your jointly-owned pet.