Pets On Divorce

Increasingly, those experiencing separation or divorce are wanting to deal with arrangements for their pets so here's what the law says.   


English law still treats pets as personal belongings in much the same way as furniture or a computer.  This means that technically, as a matter of law, the courts only have the power to order ownership to one party or another and not to decide on how much time the pet should spend with each.  As Tabby McLain of Michigan State University puts it “To grant shared custody or visitation of couple’s pets would be exactly the same, in the eyes of the law, as having them trade their television back and forth from one week to the next”.

Sources generally acknowledge that the family pet is fast becoming a largely contested issue.  Understandably, couples often take offence when courts treat their pet as nothing more than a belonging, and regard their affections toward the animal as being no more meaningful than those they would have towards, say, a kettle or toaster.  The general expectation appears to be that their beloved animals should be dealt with in a more similar way to the custody and maintenance of children.

Statistics from the Pet Owners Association suggest that up to 20% of all separation proceedings that involve custody of a pet have resulted in contested divorces, with a further 10% of couples seeking the help of a professional mediator to reach an out of court agreement regarding their pet.

The law in the USA appears to be more highly developed in this particular area, and more sensitive to the increasingly large role pets play in our lives and society in general, with reports suggesting that there are even mediators who specialise in animal mediation.  As Tabby McLain suggests, in that jurisdiction the potential for changes in pet custody laws seem to be at a peak.

There are precedents in certain states for the courts considering the best interests of pets in determining who gets custody of them.  There have also been awards of shared custody, visitation and maintenance payments to the owners.    If a court is unwilling to do this, owners often resort to negotiating a contractual arrangement between themselves. 

Whilst mediation in respect of pets will always be an option, the English courts are still a very long way off dealing with pets as they do children, as opposed to personal belongings.  This can be contrasted to the developments in the US, which suggest that it is becoming more acceptable to take into consideration the best interests and wellbeing of animals, and their relationship with their respective owners, in deciding where they should live.  It is also becoming more commonplace that awards are made for the maintenance of pets, and judges are being creative with the concepts of shared custody and visitation rights.
 
For separating couples in the UK who can't agree arrangements for their pets I would advise considering family mediation as a real alternative to expensive and risky court proceedings.
 
Couples considering a pre-nuptial agreement or a cohabitation agreement would be well advised also to think about including arrangements for their pets in case the worst happens and the relationship ends.
 
My thanks to Laura Jones for her valued help in writing this post.
 
Alex Davies is a partner and head of the family law team at Cripps Harries Hall.  He is also a qualified family mediator.