The question of who keeps a family pet after divorce can be quite a distressing and emotional one, and one that many couples separating may quietly think about. Pets play a key role in family life and ownership can be contested when couples separate. During the pandemic, there was a surge in pet-ownership, with almost 3.2 million pets being bought, making this topic increasingly relevant.

The Law Society has suggested entering into ‘pet-nups’ to try and pre-empt any possible issues that could arise in the event of a separation. Having a clear and unequivocal understanding from the outset of the relationship, or purchase of a pet, can be beneficial to both parties so there is no confusion about what will happen to the pet in the event of a separation.   

When considering division of assets following divorce, pets are classed as chattels. This means that they are treated as personal property. In principle, they are not treated any differently than a car or sofa, which hugely underestimates their importance as family members.

When deciding disputes about who will keep the pet, there are various matters which separating couples should keep in mind, including:

• Who bought the pet?
• Was it bought during the relationship?
• Who is registered on the microchip database?
• Who usually takes care of the pet?
• Who pays the daily expenses?
• Was the pet bought as a gift?

If the pet was a gift, clear evidence of this will need to be presented.

Powers of the Court

In summary, courts are able to order the transfer of ownership of a pet, like they can for any other chattel. In addition, any upkeep costs for the pet can also be calculated as part of the spouses’ income needs in deciding the overall financial settlement.

Pet nups

Much like a pre-nuptial or separation agreement, a pet-nup makes provision for pets following separation. It would include an agreement in terms of ownership, maintenance and even arrangements about how much time the pet shall spend with each person once separated.

Pet-nups are not currently recognised as legally binding and it is up to the court to decide whether any agreement is enforceable. However, if the agreement was entered into in a fair manner and there is nothing to suggest duress or coercion, the court is likely to uphold the agreement, although this does depend on the facts of each particular case. As with financial remedy matters, each case will be decided on its own unique circumstances.

How to settle disputes over pets

As a first port of call, couples should try to settle disputes about who keeps the pet between themselves. There may be practical realities post separation to ensure the pet’s welfare which may help decide who will keep it. For instance, it may be that if there are children involved, they may have a strong attachment to the pet or one spouse may rarely spend time at home, which could impact the pet’s wellbeing.  

If disputes are not settled directly through negotiation, a mediator or arbitrator could assist with finding a solution, with particular expertise involving pet disputes.

Area for reform

Currently, there is nothing in English law that creates mandatory consideration of an animal’s welfare when deciding what type or order to make in family proceedings. There is an argument that more emphasis should be placed on animal welfare, considering how prominent pets are in family life. Legal systems in other countries have adopted a more welfare-focused approach with animals post separation.

Alaska is one of the first U.S states that has taken into account the wellbeing of the animal in making decisions post separation. In a 2002 case, the Alaskan Supreme Court decided that the wellbeing of the animal should prevail over property law principles.

As of 2019, California has also adopted an approach that considers the pet’s best interest and future welfare in pet custody decisions on divorce. 

For the time being, the English courts still treat pets as chattels and  encourage these disputes to be settled out of court.

Legal advice should be sought in relation to any disputes concerning pet ownership on separation. Our team of Family lawyers can provide tailored advice to separating couples where disputes arise in relation to pets.