During your first dinner out together, you politely offer the last bite of the chocolate cake to your date. Once you are married, you playfully rush to claim that last piece with your fork before your partner can. But when it comes to discussions regarding your divorce it’s another story: You talk about what percentage of the dessert goes to whom, how exactly different parts of the piece should be allocated, and what the implications are for the bill.
The very notion of divorce is in itself already complicated. The kids, the emotions, the documents, the finances, the mutual friends, the re-established identities, and, for our purposes here – the assets. Unfortunately the process doesn’t just end with an organised compartmentalisation of these various aspects of a separation. It isn’t as simple as arranging the matters into different files. Under each category, divorcees and lawyers are confronted with a whole labyrinth of further questions, dilemmas and surprises. So when we open up the folder labelled “assets”, there are cobwebs of anything and everything that has been in existence since the beginning of the union and is now legally up for division, as well as a number of things the partners brought to the marriage from their previous lives.
Even in less extreme situations where both parties are calm, level-headed and rational, indecision remains inevitable. Regardless of how well a person can cope in the midst of conflict, dividing assets can be hard. And the focus isn’t always on monetary value. The extent to which people go when claiming ownership is exemplified by the mass of scenarios that revolve around the ubiquitous question: Who gets the dog? I imagine the conversations take place somewhere along the lines of: Keep the mansion, keep the sports cars, keep the beach house, but the dog stays with me. Indeed, most dog owners would certainly agree, a well-developed human-dog relationship can feel emotionally unparalleled. Clinical psychologist Helen Nightingale says, “Children can verbalise and state a preference, so pets are often fought over far more fiercely.” Celebrities also pursue custody over creatures they’ve gotten earnestly attached to. Jake Gyllenhaal was keen to hold on to a German shepherd named Atticus after a relationship breakdown, while Drew Barrymore retained Flossie, a beloved labrador-chow cross, in her divorce from comedian Tom Green – but who can blame her: the dog famously saved the couple from a house fire some months before.
When no compromise is reached between a couple, they can apply for a judge to make the decision, as pets are considered chattels (personal possessions) by law. There is no codified approach for pet custody disputes so UK family courts apply the same test used for the general law of property. This uses factors like whose name appears on the pet’s registration or which ex-spouse paid for food bills and other such expenses.
The problem with a mere determination of which side has the better claim to title of the property lies in its lack of comprehensiveness. A piece from the International Journal of Law, Policy and the Family published by Oxford Journals analyses the emergence of pet custody disputes in relation to theoretical tools from child law. American courts – in contrast to the UK – occasionally go a step further from conventional property law principles and take into account the “best interests of the animal” test in light of its living and sentient nature.. At present, however, the line between its perception as property and as a member of the family is still conspicuous, and there is no indication of imminent reform.
In 2003 Switzerland changed its Civil Code to deal with pets – the provision that deals with shared ownership of property was amended, requiring courts to give sole ownership of a jointly owned pet to the person the court thinks will be a better pet owner,, both physically and psychologically. If England were to delve deeper into this template, modifications in terms of visitation rights and care costs could come into play.
The fact that guardianship of pets is finding its way to the centre of family law debate reveals two things – first, that the legal system is ever-evolving, and second and more importantly, the depths and intricacies of the struggles of those going through a marital breakdown.
If you have a dispute that involves pets then get in touch. Melanie Steeples and Megan Bennie have worked closely with dog owners in the past to ensure that their pets remain part of the family.
Isabel is a guest blogger for Grayfords. She obtained her Bachelor of Arts degree in Political Science with a minor in Economics from Barnard College of Columbia University in New York City. She is currently pursuing the Graduate Diploma in Law at The University of Law in London.