Although many of us consider our pets as part of the family, as far as the Courts in England and Wales are concerned, until recently a pet would be treated no differently than a piece of art or a sofa - they were considered to be a possession or ‘chattel’. They were not viewed as having any rights of their own.
In dealing with who should look after the pet at the end of a relationship, the Court used to be guided by the legal ownership including, for example, who paid for the pet, in whose name is the pet registered at the vets or the Kennel Club. A recent case however may evidence a shift in that approach.
In the aptly anonymised recent case FI v DO [2024] EWFC 384, the Judge decided to take into account other factors such as who had looked after the dog, commenting that the 18 months the dog had spent with the wife was ‘a long time’ in a dog’s life. The judge also took into account the feelings of the children who lived with the dog and decided that the dog should stay living with the wife and children. The judge felt that disrupting these arrangements would be distressing for the children and the dog.
So, we may be seeing embryonic changes in approach. The difficulty is that this case does not set a precedent which would be binding on other judges in the future, so the uncertainty remains.
The stress and distress caused by arguments over where a pet should stay after the breakdown of a relationship cannot be underestimated.
In a survey carried out for Direct Line, they found that 27% of divorce cases involved arguments on the custody of a pet and that there had been a 20% rise in the demand for pet-nups before marriage.
A pet-nup is simply an agreement, ideally entered into before the pet is brought home and can be either a stand alone agreement, or incorporated as part of a cohabitation agreement or a pre-nup.
A pet-nup can set out:
- who should care for the pet in the event of the relationship breaking down, whether by divorce, separation or the end of cohabitation;
- how the animal should be cared for, including any particular dietary requirements;
- who will arrange insurance, and vet checkups on a regular basis;
- whether the pet will spend time with the other spouse/partner;
- financial contributions towards the care of the pet, and how they will be split;
- who will meet specific costs and how they might be split, particularly vet bills;
- plans for welfare issues such as ensuring the pet, if appropriate, is microchipped and/or registered with the appropriate body i.e. the Kennel Club;
- what happens during holidays, who will look after the pet; and
- breeding and if there are any restrictions.
We have seen disagreements on the care and ‘custody’ of pets crop up not only within the traditional divorce process, but also during mediation. According to the Blue Cross animal charity, dogs and cats are the most fought over pets followed closely by horses, rabbits and guinea pigs. On a relationship breakdown, 56% of cases will see women keep the pet, whereas just under a third of men retain full ownership.
Any agreement should be formally entered into either as part of a prenuptial agreement, cohabitation agreement, or a standalone deed in relation to the pet. As ever, take legal advice. It remains to be seen whether the trend extends to pets having separate representation!
