Paws for Thought – Who Gets the Dog on Separation?

Pets have played an important role in  families for a long time, with dogs long being the most popular pet in the UK. This popularity soared during the Covid pandemic with many people taking the new found opportunities to work from home to get the dog they had always wanted. Ownership of dogs increased so much during this time that the media have suggested that due to the pandemic that we have now reached ‘peak dog’.

Although I started out as a reluctant dog owner, our puppy soon became a much-loved member of the family and he’s now my main running buddy and we have far more pictures of him on our phones than we do of the kids!

Many families up and down the country feel the same about their dogs. Whether they’ve had dogs for years, or used the pandemic as an ideally opportunity to get one, their dogs are a treasured family member. However, what happens to your dog if you separate or divorce? Whilst this may seem like a very ‘niche’ issue, this is in fact an issue that Courts all over the world have been grappling with for many years, and certainly well before we reached ‘peak dog’ during Covid. With the rise in pet ownership, who gets to keep the pet on separation is becoming more and more of an issue for separating couples.

Certainly, I’ve had cases where who gets the dog has been a real bone of contention, no pun intended… In one particular case, there were assets of several million pounds and the family had two dogs; whilst we were able to agree relatively quickly how the assets were to be divided, agreement about the dogs was more tricky.

So, what is the situation not just for dogs, but for all pets on divorce?

Pets in English Law

It often comes as a surprise to most people that under English Law, when a couple separates, pets are treated in the same way as any other possession (what the Law refers to as ‘chattels’) i.e. the car, sofa etc. This means that the starting point for who should have the pet on separation, rather than being based on the pet’s welfare, is all about who bought the pet in the first place. This is an unusual position when pets are often treated as a member of the family.

Although ownership is a relevant factor, the English Courts have very wide powers to deal with the assets of parties on divorce. For example, although one spouse may own a £1m Ferrari in their sole name, this does not mean that on divorce that the expensive car is kept by whoever bought it. Instead, the Court has significant powers to order that the expensive car be sold and the proceeds divided between the parties.

However, the division of such assets i.e. a valuable car, is on the basis of fairness and what the financial needs of the parties are. When it comes to who should get the pets, it’s very difficult to divide them up on the basis of fairness (even if there’s 2 dogs, it may be difficult to say that each party having one dog would necessarily be fair) and it’s very difficult to make an argument to needing a pet financially, perhaps unless you happen to breed racehorses!

Factors

Therefore, how is it decided who gets the pet(s)?

As above, there is no presumption that a pet should be treated any differently to any other asset. There is therefore no prescribed way that a Court would determine who should have the pet on separation. However, it is likely that the following factors would be taken into account:

• Who bought the pet? This is certainly going to be an important factor because this indicates ownership. However, just because one party bought the pet does not necessarily mean that it will be deemed to be theirs as there could be a number of reasons why the pet was bought by one party, rather than the other.

• Was the pet bought during the relationship? If the pet was bought when the couple were living together, then this is likely to show that the pet was for the family, rather than just one of the parties.

• Was the pet bought as a gift? This would indicate that it belonged to the person who received the pet as a gift. However, this could be effected by the other factors below.

• Who takes care of the pet? This is another important factor. If one party carries out all of the care of the pet, for example in the case of horses where only one of the parties rides, then this will be seen as very important.

• Who pays the day to day expenses for the pet?

• Who is the pet registered to i.e. microchip/vet/insurance.

The above is not an exhaustive checklist that a Judge would use to make a decision as to who the pet should live with. However, it shows the likely factors that may be taken into account.

What is most notable from the above checklist is that there is no factor about the wellbeing of the pet. Instead, the above are based on either legal ownership which means who bought the pet , received it as a gift, or who has assumed ownership by paying for the vet bills or looking after the pet more often.

The Case for Reform

The situation in other countries shows that there is an appetite for pets to be recognised as distinct from other belongings due to their importance as cherished members of the family.

According to research about pets in the UK:

• 51% of UK adults own a pet;

• Almost 1/3 of families have a dog;

• 24% of UK adults have a cat - an estimated population of 10.8 million pet cats

• 2% of UK adults have a rabbit - an estimated population of 800,000 pet rabbits

Given the extent of pet ownership in this country, there is likely to be support for such a move in the legal presumption in respect of pets. However, change in the law is often glacial at best…

How you can to achieve certainty

With reform unlikely to happen anytime soon, the way to have certainty over what should happen to any pets on separation or divorce, is as with any other issue i.e. that a formal  agreement should be drawn up to confirm what the parties want to happen with their assets (including their pets) should they separate.

A Prenuptial Agreement, often referred to as a ‘Prenup’, is a written agreement between a couple prior to their marriage. The prenup will set out how the parties want their assets to be divided up if the marriage breaks down. Although these agreements cannot override the Court’s power to decide how assets should be dealt with on divorce, the landmark Supreme Court decision in the 2010 case of Radmacher v Granatino confirmed that provided such agreements are properly entered into, then the Court will look to follow them. There is therefore a strong presumption that provided the required formalities of such agreements are followed, that they will be binding on divorce.

It is possible to have such an agreement drawn up if you are already married; these are called Postnuptial Agreements, or ‘Postnups’. For unmarried couples it is possible to have a ‘Cohabitation Agreement’ drawn up that sets out how the parties want their assets to be divided up if they separate.

As such, it is possible for arrangements for pets to be set out in a Prenup, Postnup or Cohabitation Agreement, which would then be determinative if the parties subsequently separated.

There are very specific requirements for all such agreements and therefore advice from a specialist Family Law Solicitor is recommended.