After we’ve divorced, who gets the dog?

From puppies to parakeets, cats to chameleons and everything in between; we are a nation of animal lovers and often the family pet is a valued and beloved member of that family. But what happens to your pets after divorce? Here, Brigid O’Malley looks at PetNups and what the court could decide.

PDSA’s 2022 findings show that 52% of UK adults own a pet.  There is an estimated population of 10.2 million pet dogs and 11.1 million pet cats[1] in the UK! So, what happens when your relationship or marriage breaks down… who gets the dog?

Despite millions of us owning pets and them likely being an extremely loved and important part of the family, a pet, in the eyes of the law in England and Wales, is treated in the same way as your jewellery, TV, car and sofas! They are personal belongings – “Chattels”.

This can be a really difficult issue to advise about as animals are a significant part of family life and today’s society. They are often adored by adults and children making disputes over their ownership a sensitive subject.

We can’t agree who keeps the pets – what do we do?

Like with other issues following your separation it is sensible to try and agree with your ex-partner who keeps specific items, pets included. This can, of course, be hard and at times confrontational, but at the end of the day if an agreement can be reached between you it will likely save you the stress, time and legal costs later down the line.

If you can’t agree between yourselves then you could attend mediation to engage in discussions with your ex-partner in a safe and controlled environment, with a qualified mediator to assist you.

Court proceedings are a last resort, but they remain an option. If an agreement cannot be reached it is possible to make a court application for financial remedy as part of your divorce. The Court will consider a set of factors (from s25 of the Matrimonial Causes Act 1973) to determine a fair division of matrimonial assets. The Court can be requested to determine ownership of pets within that but, in practice, this is rare unless the animal has a high monetary valuable such as a thoroughbred racehorse or a pedigree Crufts prize winning dog. Of course, if your pets are very valuable then their value may be considered in the asset pot for division.

The Court can order the transfer of ownership of a pet as part of the proceedings, even if they have no monetary value. The close bond between the parties, any children and their pet would be relevant if the Court was invited to determine the issue of ownership.

If you are not married, then it is likely the pet(s) will stay with whoever is the registered legal owner but it may be possible to make an application to determine ownership through the Small Claims Court – this would be a civil dispute rather than a family one.

When makings its decision, the Court is likely to consider factors such as who is the registered legal owner, who is named on the insurance policy, who is registered with the vet and who generally pays for the care of the animal. Courts in other countries are moving towards an approach where the animal’s welfare is at the heart of the decision making. The Courts in England & Wales may take this into account, but the best interest of the pet is not the primary factor here, the animal is treated as a chattel.

I’ve heard of a “PetNup” – Can I get one of those?

A “PetNup” is an agreement regarding the ownership of a pet and can detail who the pet will live with if the relationship breaks down. It can also cover things like who will pay the costs associated with the animal such as vets’ bills and insurance premiums.  A PetNup is not legally binding in the Courts of England and Wales but its contents, if well drafted, carefully considered and entered into without duress could carry significant weight if there was a dispute later down the line.

It would be sensible to consider entering into a prenuptial agreement prior to marriage or a cohabitation agreement when you move in with someone to ensure the ownership of your pets has been discussed and agreed in the event of the relationship coming to an end. A prenuptial agreement or cohabitation agreement can also set out the arrangements for the family finances and child arrangements so it can be a really useful document.

If you are facing a dispute about your cherished pet and want some advice, then contact our team of family experts who can advise you further.

[1] https://www.pdsa.org.uk/what-we-do/pdsa-animal-wellbeing-report/uk-pet-populations-of-dogs-cats-and-rabbits#:~:text=Our%202022%20findings%20showed%20that,of%2010.2%20million%20pet%20dogs