Fighting like Cats and Dogs: Who keeps the Pets on Divorce?

As a nation of pet lovers, it’s no great surprise that who gets to keep the dog, cat or other animal on separation is often a very contentious issue.  It is estimated that 20% of separating couples will be involved in pet custody disputes following relationship breakdown and this is an issue we are encountering on a more regular basis when meeting with clients.  

Although research by the Dogs Trust1 has shown that a family dog lives longer than an average marriage, few couples actually consider what will happen to their pets in the event that they separate.  Couples facing this decision on divorce, an already stressful and emotional time, often find it difficult to take a rational approach to this issue.

The approach taken by the courts does not take into consideration these important emotional ties.  Despite being described as a man’s best friend, dogs and all other pets are treated as personal property on divorce.  This means that disputes are dealt with using the same principles that would be applied to ordinary assets, such as furniture or a car.  A court will consider who is the ‘rightful owner’ of the pet by looking at who bought the animal, whether it was a gift and who has met the vet bills,  without bearing in mind who carries out the majority of day-to-day care for the pet.  In couples where one has taken the role of the breadwinner, this can result in an unjust outcome.

The state of Alaska has recently adopted a novel approach to this issue by treating pets more like children.  Following an amendment to the law, judges are now required to take into consideration “the well-being of the animal” when deciding which party should get custody.  Furthermore, Alaskan judges now have the power to grant separating couples joint custody of a pet or visitation rights. 

The Animal Legal Defense Fund, an organisation which seeks to advance the interests of animals through the legal system, has hailed this approach as “ground-breaking and unique”2.  This approach accepts that animals are fundamentally different from other types of property and focuses on how the needs of the pet will be met. 

Hannah Butcher, Solicitor in our Family Team comments: “We always encourage clients to take a pragmatic and proportionate approach to resolving disputes, but this can be extremely difficult where pets are involved.  This is a sensitive and emotive subject and it is impossible to attribute a financial value to a cat or dog in the same way you can with other assets.  We would welcome an approach where the welfare of an animal is the primary consideration in such disputes, focusing on who could better provide care rather than who has the stronger claim to title.”

We recommend that couples consider this issue when purchasing a pet to avoid acrimonious disputes in the future.  This is particularly important for cohabiting couples, where the current law offers limited protection and a court will have no choice but to rely on the strict legal principles of property ownership, which can lead to seemingly unfair outcomes when it comes to pets.
We understand how important pets can be to families and that during the stressful time of a separation, uncertainty over what may happen to your much-loved pet can be very difficult to deal with.  If you would like any further advice on this matter, please contact a member of our Family Team who would be happy to discuss your situation.

1 http://insights.dogstrust.org.uk/post/102d9n5/family-dog-lives-longer-than-average-marriage  
2 http://aldf.org/blog/