We caught up with Senior Associate Solicitor Stuart Barton regarding the rightful ownership of family pets upon separation.

It remains common whenever a couple separate for there to be some degree of debate over who should keep certain contents of the family home. Dividing up furniture, bedding and electrical appliances is usually not too problematic. If there is a meaningful dispute over who should retain a specific item, there is always the fall-back option to sell the item in dispute and divide the proceeds equally.

The above is not so straightforward or appropriate when it comes to who might keep the family dog (or cat or goldfish for that matter). Strange as it may seem to many, the court does not view a family pet as a living/breathing member of the family but instead considers them to be ‘an item’ or chattel in the same manner as the TV or the bedside table.

The starting point for who should retain the family pet largely arises from whom is the legal owner of the same. In the case of a dog for example, whomever is registered as the owner of the dog, would be seen as the legal owner. If the couple in question are unmarried, the usual outcome would be that the legal owner should retain the dog, even if the non-owner has had extensive involvement in the care/upkeep of the dog. If the couple are married with children, the outcome may not be as straightforward. If the children have a clear and obvious emotional connection with the family dog, the court may take the view that the dog should remain with the parent who is the primary carer of the children, even if they are not the registered owner of the dog.

Where the above becomes more complex still is that it is common for divorcing parents to share care of their children following separation. This could be on a 50/50 basis or unequally. In either case though, there are arguments that the family dog should form part of both parents’ future lives with their children and a shared care arrangement for the family dog may have to be considered as a necessary step.

Of course, any form of litigation over the division of chattels is generally discouraged and brings with it a certain degree of risk. If a Judge found themselves unable to determine who should retain a family pet and the parties cannot reach any compromise to settle the matter, the Judge may order that the pet is sold and the proceeds divided between the parties. Whilst this is an extreme outcome, it remains a possibility. Therefore, for all couples who have a family pet (married or otherwise), it is worth considering a ‘pet pre-nup’ or ‘pet post-nup’ to clearly set out future ownership/care of the pet in the event of their separation.

In terms of what could/should be included within such an agreement, it would of course be down to the couple in question to tailor such an agreement to their specific requirements. However, the following would appear sensible:

• Who will retain ownership of the pet? Will ownership be shared and if so, how?
• Who will be responsible for pet insurance and any veterinary bills/expenses?
• Are there any special dietary requirements of the pet that must be followed in respect of its care?
• Are there are special considerations over the care of the pet? Can it mix with other animals? Does it require a specific exercise regime?
• Who will be responsible for the pet during holidays?
• When the pet comes to the end of its lifetime or starts to suffer from serious illness, who can/should make the decision upon any end of life treatment?

As yet, there have been no reported cases where the court has been asked to consider the enforceability/effectiveness of such an agreement over the family pet. However, in both divorce cases and cases where unmarried couples have separated, the court has regularly expressed its willingness to uphold properly and carefully drafted written agreements that are created by couples who wish to set out their financial intentions upon separation in respect of dividing their assets and chattels.  It seems only logical that within such an agreement, provision can and should be made over future arrangements for a family pet and the court should be expected to enforce these arrangements in exactly the same way. By doing so, the risks of prolonged and expensive litigation over the family pet can avoided or minimized. And remember:

“In any moment of decision, the best thing you can do is the right thing. The worst thing you can do is nothing.” – Theodore Roosevelt.