To most people though, the family pet is much more important than a mere chattel, and the issue of who keeps the much-loved pet can be a cause for concern and is an important consideration in their divorce proceedings. Emotional arguments over who will keep the pet are extremely common in our experience.
Some couples decide to agree on a “petnup” which sets out who cares for the pet in the event of separation or divorce. It sets up who will look after the pet, who pays the vet fees and expenses and what will happen to the pet if one party goes on holiday.
Family pets often play an integral role in family life and it may come as no surprise that custody of the pets can be one of the most hotly contested aspects of settlement negotiations when a couple decides to divorce or separate. In our experience, it can sometimes lead to bitter disputes during a divorce.
Apparently one in four divorces now involves a dispute over a pet and, as a result, the Law Society has suggested that entering into a ‘petnup’ might be beneficial.
If an amicable agreement cannot be reached, then a court would ultimately decide who keeps the pet.
If parties cannot agree who will have ownership of the family pet, then the courts will check who has proof of ownership and rule in their favour. The legal owner has no binding obligation to give the non-legal owner access to their pets.
A court will look at:
The only exception is if there is clear evidence the animal was subsequently gifted to the other party.
In some divorce cases, custody of the family pet has been resolved by transferring ownership and pedigree from one person to another, or sharing custody of the pet as well as sharing maintenance costs.
Courts can order transfer of ownership, as an animal is considered a chattel in the same way as a car or a possession. The Court can also calculate upkeep costs for your pet when calculating income needs as part of the overall financial settlement.
A petnup is drawn up like a prenuptial or separation agreement, but specifically deals with pets. They typically agree the ownership, custody, maintenance and other arrangements for your pet in the event that you separate or divorce.
All these details can also be included as clauses in a prenuptial or postnuptial agreement, rather than making a separate petnup.
We always recommend couples try to resolve issues over pets mutually and by setting out a specific agreement it ensures that all eventualities have been considered and agreed upon beforehand.
Ultimately, to avoid any heartache and potentially costly legal proceedings, it is certainly worth considering entering into an agreement to resolve what will happen to the pet in the event of a separation.
Factors to consider in a petnup are:
It is important to reflect on what is in the animal’s best interests. If one of you goes out to work all day and the animal is left on its own, then it might be fairer for it to live with the person who is around the home more.
You could adopt a ‘shared care’ approach. For example, a pet dog can regularly be taken for walks by the party with whom the pet no longer lives, or they can provide free pet-care whilst you are on holiday. Make sure that both of you have the time and resources to care for the animal if you decide on shared care.
The agreement is essentially a contract and, on this basis, a court would very likely uphold the terms of it should you divorce.
If it is not possible to reach an agreement in divorce proceedings, you could consider attending mediation. This would enable you and your ex-partner to sit down with a trained impartial mediator who will help you resolve the issue.
If mediation does not work, a pet could be considered as part of an overall financial settlement on divorce. However, if this is the only area of dispute, it is unlikely to be cost-effective to issue court proceedings purely to resolve this issue.
Animals are very sensitive to change and will be aware of tension in the home. Changes in living arrangements and routines are likely to upset your pet and their behaviour may change.
Hopefully whatever decisions are made about your loved family pet will put their welfare first and keep disruption to a minimum.
In recent years the State of Alaska, California and Illinois amended their divorce statutes to ensure that a court would consider the animal’s welfare before making a decision as to who keeps an animal. Courts were given the power to order joint custody for pets if it was considered in the pet’s best interests following the divorce of its owners. A bill is pending in New York to take the same approach.
If disputes about pets continues to grow in divorce proceedings in England and Wales we may see a change in legislation to become more animal welfare-based.
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