There are few nations pottier about pets than us Brits. Almost half of us (45%) own a pet . Dogs are the most popular, with 26% of people in the UK sharing their home with a pooch. Cats come in second (18%). What’s more, we love our furry friends – over 90% of pet owners say that owning a pet makes them feel happy, and 88% feel that pet ownership improves their overall quality of life.
For many couples going through a divorce, the issue of what will happen to their pet/s can be as contentious as issues surrounding the financial settlement and even arrangements for children.
Why do we love our pets so much? From an evolutionary perspective, such devotion makes no sense, as devoting resources to other species is “fitness-reducing ”. However, according to John Archer’s paper entitled “Why do people love their pets”, the very mechanisms which domestic animals have perfected over thousands of years to elicit care from humans also benefits pet owners, who experience a form of unconditional love that is usually absent in human relationships.
If you have been the predominant carer for your pet; always the one to brave the rain to take the dog for a walk or have been diligently cleaning the cat litter tray for a decade, it is completely understandable that you feel angry and betrayed if your spouse suddenly wants custody of your beloved pet when you separate. And let us not forget the feelings of any children involved; being separated from their pet can cause extreme distress for a child who is already struggling to cope with the fact his or her parents have chosen to live apart.
How pets are treated in a divorce settlement
The family law system in England and Wales is focused on supporting and encouraging couples to work out arrangements for children and the financial settlement between themselves rather than go to court. This is mostly achieved through negotiation between the couple and their respective Solicitors.
If a dispute develops then the court will treat a pet in the same manner as other personal items such as a car or furniture.
This may sound callous when talking about a sentient being, but the fact is UK law does not provide any legislative provisions for how pets are treated in a divorce settlement.
The main consideration the courts are likely to give when deciding who should have custody of a family pet is which party provided most of the day-to-day care. This was confirmed in the case of RK v RK  EWHC 3910 (Fam) where Mr Justice Moylan stated:
“There are a few subsidiary issues I must determine, including the wife’s claim to a painting and to one of the family dogs. On the latter issue, I do not consider it appropriate to make any order in respect of one of the dogs because, on the evidence I have heard, they would seem to have been looked after principally by the husband.”
Courts in England and Wales will include care costs related to pets such as vet bills and food, as part of the financial settlement where appropriate.
An international perspective
Although English law remains silent on the issue of who should retain custody of the family pet in a divorce, other countries have recognised the importance of not only the feelings owners have towards animals, but the wellbeing and rights of the animal itself in such situations.
In Who Gets Charlie? The Emergence of Pet Custody Disputes in Family Law: Adapting Theoretical Tools from Child Law , Deborah Rook highlights two divergent approaches to this issue: “property law versus best interest of the animal test”. She states that in the USA there is a constant tension between the courts’ insistence that animals are property but reluctance to rely on property law principles alone to resolve the dispute.
In the case of Houseman v Dare A-2415-07T2; Appellate Division, the Court ordered specific performance of an oral agreement between an unmarried couple. The couple agreed that they would have joint possession of their dog on the basis of an alternating 5-week period. When one party breached this by refusing to share the animal, the Court provided a remedy of specific performance. Under New Jersey state law, pets are considered personal property. Deborah Rook comments that under state law, specific performance orders in respect of personal property can only be made if the property is “unique or rare”. At first instance, the trial judge ruled that animals ‘lack the unique value essential to an award of specific performance’ and instead awarded damages. This decision was overturned on appeal, where the Court stated that pets have a “special ‘subjective value’ to their owners and put them alongside “heirlooms, family treasures and works of art that induce a strong sentimental attachment.” The case set the following guidelines for future pet custody disputes:
1. Although pets are considered property, they have unique sentimental value which cannot be quantified with money,
2. Decisions regarding pet ownership should be made in contract law rather than the best interests of the animal,
3. Courts in New Jersey can issue shared possession orders for pets, and
4. A hearing may be held to determine which party had the greatest attachment to the pet.
In January 2019, the state of California passed legislation (Assembly Bill 2274 ) providing the Courts power to determine what is best for the pet in cases involving animal custody disputes. California follows Alaska and Illinois in ensuring that the best interests of the pet is considered when making court rulings in divorce cases, rather than simply treating animals as property.
Animal welfare groups welcomed the passing of the new law, with the San Francisco SPCA stating in a press release:
“Today more than ever, people consider their pets as part of the family, not just personal property to be divvied up like an appliance or furniture. When it comes to legal separation, it is important to consider the care of the animal.”
Other countries to move towards the ‘best interest of the animal test’ are Israel and Switzerland. An Israeli court adopted the test in Ploni v Plonit, 18 March 2004 (unpublished) in the Ramat Gan Family Court FC 32405/01 and considered expert evidence from an animal behaviour specialist when making its decision regarding who got the dog and cat in a divorce. And Article 651 of the Swiss Civil Code was amended as far back as 2003. Article 651a provides a test which directs the court to give sole ownership of the jointly owned pet to the party “that, with regard to animal protection, ensures the better keeping of the animal.”
The law in England and Wales, as it stands, treats pets as property. However, Deborah Rook points out that the law relating to children has changed exponentially over the years; after all, only 200 years ago, children were (for reasons of necessity) seen as economic resources and ‘possessions’ to be owned. This type of thinking horrifies us today. The rights of animals continue to increase; one only has to look at the explosion in veganism and the row that erupted when the UK Parliament refused to pass a legislative amendment declaring animals as ‘sentient beings’ to see evidence of this. Therefore, it is likely that both the government and the courts will move towards the ‘best interests of the pet’ test in the future.
In the meantime, one way that couples can ensure a dispute does not develop is to set out plans for their animals in a pre or post-nuptial agreement or a cohabitation agreement. This will provide the Court with guidance as to the intentions of you and your spouse/partner when it comes to who gets custody of your beloved pet.
Rosie Bracher are specialist family law solicitors based in Barnstaple. We have the knowledge and expertise to advise you on all matters involving divorce and family law. Please contact our office on 01271 314 904 and arrange to speak to one of our team.