In England and Wales, pets, whether it is a cat, dog or a fish are considered in law under the Section 24 (1) and 24A of the Matrimonial Causes Act 1973 (MCA 1973), or the Civil Partnership Act 2004 as ‘chattels’, similar to possessions such as a car or a piece of furniture.
The courts generally have been reluctant to deal with the issue of pets and have simply considered them as a chattel or personal property. The court would look at the legal ownership, i.e. the person who bought the pet and/or has the registration documents in their name, and who has been the primary caregiver for the pet (feeding, vet bills, insurance costs, etc.)Pet ownership can only be transferred if one party gifts the pet to the other party.
For many people, a pet means much more than an object, a member of their family, a source of emotional support and companionship. It can be hard to grapple with the emotions involved when talking about pets for couples who are divorcing. While lawyers focus on how to divide the property, pensions and money in a financial settlement, pets can be overlooked.
What is the court’s approach?
Many couples reach their own arrangements and share pet care. If they can’t agree, it’s smart to seek legal advice. This can clarify options for resolving disputes.
Initially, it’s both helpful and cost-effective to try mediation or solicitor negotiations. If they still can’t agree, one party may decide to start court proceedings or choose arbitration.
A recent case, FI v DO [2024] EWFC 384, has demonstrated a shift in the courts decision making when determining what happens to your pet. In this particular case, the court determined that the dog should remain with the wife, after considering the husbands actions of snatching and injuring the dog and noting the agreed fact that the dog had lived with the wife for the preceding 18 months. The court looked at the best interest of the dog in the matrimonial dispute, which has set a potential precedent for future cases. Behaviour was a significant factor in this case, and it demonstrates that even with our current rigid framework of law, the welfare and past treatment of your pet can influence outcomes.
The reality is that the current legal approach does not reflect how modern families view their pets and the courts are recognising the emotional value of animals. In recent years, several countries have reformed their laws to ensure that pets are not treated like ‘chattels’ during divorce or separation.
How can you determine what happens to your Pet?
There are always difficult conversations to be had when dealing with a separation or divorce, and some disputes over animals are complex. One party may argue that they have a stronger bond with the pet than the other and questions about who they shall live with. Deciding who pays for their care and maintenance can be stressful.
Parties can attend mediation to help resolve their issues but if this is not possible, then the courts can make decisions when determining the overall financial settlement. At this point the court will consider factors such as;
- ownership and who holds the registration documents
- has there been any prior agreements
- as in the recent case, the relationship between the pet and the parties
- the children’s attachment
- a pets expenses will need to be considered when the courts look at the income needed as part of the financial settlement.
Is it worth having a formal agreement drawn up?
Pets play a crucial emotional role in families making their custody a sensitive issue. It is now more and more common for parties to enter into a formal agreement about what should happen to their pet if they separate. These are known as ‘Pet Nups’, inspired by Pre/Post Nuptial Agreement. Whilst they are not legally binding, they can hold weight in the event of a dispute.
The focus of your agreement will be on what happens in the event of a breakdown in the relationship, ensuring your pets welfare and allowing each of you to main a good relationship with your pet.
You can have a standalone agreement which may include:
- Who shall keep your pet and the living arrangements
- Who will pay for their upkeep and set out the parties financial responsibilities
- Wow and when access will be provided
- You can set out how parties should aim to resolve any disputes
You may also wish to include a separate clause in a pre/post nuptial agreement which can be used to settle any disagreements. The matter can also be covered as part of a cohabitation agreement.
It is important that you seek legal advice to make sure that you are able to draw up an agreement which best suits your needs.
For detailed advice, please get in touch with one of our private family lawyers who can guide and support you if you have a divorce or separation dispute regarding pets. You can contact [email protected] or call 0333 240 7373.