Pets in divorce – property or family member?

10th March 2015 by

 

“Who gets the dog?” has always been one of those questions which is seen as something of a joke in divorce.

However, some divorce solicitors suggest it is a question not adequately handled by English and Welsh family law.

Generally, the courts see pets as family property for the purposes of a divorce settlement, and the principles of property law and ownership are applied. Yet, growing numbers of people see pets as family members and the arguments over where a pet should reside after a family split are far more akin to children disputes than ever before.

Which family law test should be applied

Here’s a scenario:

Mr A buys a puppy six months before he and his girlfriend (Mrs A) move in together. The couple get married and have children. Mr A goes out to work every day, and some weekends, while Mrs A, along with the two children, look after the pet on a day-to-day basis. When the couple get divorced, who should get ‘custody’ of the dog?

The law as it stands would hold that, as the purchaser of the dog, Mr A is the original owner and should be awarded the pet in a divorce settlement. However, Mrs A argues that the dog would be left alone for long periods of time and its loss of time spent with the children would cause it considerable distress.

Best interests tests

In English and Welsh family law, when looking at disputes over children in divorce, the courts apply various tests which examine what would be in the ‘best interests of the children’ and arguments are rife that a similar test should be applied to family pets as well.

However, judges argue that by applying pure property law principles, the family (and the animal) can be spared the emotional harm caused by acrimonious wrangling over ‘who gets the dog’ and this frees up the courts and keeps costs down.

Child law has evolved

Once upon a time, children were seen as the property of the father, and, especially in the case of male children – heirs – there were laws in place to protect a father’s financial interest in the devolution of wealth through the male side.

Thankfully, family law has come a long way since those days and, in deciding children arrangements under the law, family courts must now give primary consideration to the welfare of each child.

While it is flawed to believe the law should treat pets in the same way as children, many commentators believe further consideration should be given to the welfare of the animal when the decision is made as to who should become the primary care-giver to a pet.

In 2014 an article on this question was published in the International Journal of Law, Policy and the Family. Written by Deborah Brook it concluded that “a clear statement of the relevant factors that can influence a decision [in pet custody cases] needs to be provided either by a court or by legislation to assist those engaged in private negotiations as well as those contemplating court proceedings”.

Are you in dispute over a pet in your divorce settlement?

Healys family lawyers in London and Brighton have many years’ experience in handling divorce settlement claims for clients.

We provide expert legal representation in children matters and financial claims on divorce. Our wide-ranging knowledge means we can advise on all aspects of divorce settlements and will be able to advise you how to best proceed in a dispute regarding a pet or animals on divorce.

To make an enquiry today, please email the family law and matrimonial team today at family@healys.com. We will call you back to discuss your circumstances.