What happens to pets in divorce and separation?

It is currently National Pet Month which runs from 1 April to 6 May. With that in mind it seems to be an opportune time to consider what would happen to a pet in the event of a divorce or separation.

Pets in this country are often treated like members of the family, sharing our homes and lives, providing unconditional affection and, in some houses, receiving Christmas and Birthday presents just like other members of the family.

We are a nation of animal lovers and as such the Animal Welfare Act 2006 has introduced tough penalties for neglect and cruelty, such as fines of up to £20,000, jail terms of up to 51 weeks and lifetime bans from keeping pets in some cases.

The act also introduced into legislation a welfare offence which places a duty of care on pet owners to ensure that the basic needs of the pet are met, such as providing food and water, vets treatment where necessary and a suitable living environment.

With legislation in place of this nature, it must surely follow that there is a law (or laws) in England and Wales which governs the “residence” and “contact” provisions for pets and owners in the event of a separation and/or divorce? Wrong!

A pet is treated like property in England and Wales, akin to a book or a handbag and, unlike children, their welfare in this context is not a consideration of the Court.

This is not to say that agreements cannot be made between parties in this regard. Parties can negotiate upon points such as with whom the pet will live full time, which will usually be based upon who has the space, the capacity and the flexibility to care for the pet and then if necessary for the other party to have contact with the pet at agreed dates and times, much like a parenting plan for children.

If the parties cannot agree this point between them they can undertake mediation or arbitration to conclude this matter. However parties are warned that this process will of course come with some cost and it could take some time to reach an agreement. Previous case law exists in which parties were arguing for so long about the residence and contact of a rabbit that unfortunately the pet died before agreement could be reached.

In 2017 a law in Alaska was enacted to “take into consideration the wellbeing of the animal” when deciding with whom the pet should live, with the default position being joint “custody” as if the subject were a child. However in the 2 years that has transpired since then there has been no further legislation in this country to further this point.

Therefore as it stands if the parties cannot agree and the Court is forced to intervene then the situation will be considered quite clinically in order to resolve the matter. The party who purchased the animal (unless this was a gift) and/or the party who has financially maintained the pet might therefore become pertinent points.

This issue is not likely to go away however with 49% of the adult population owning a pet; this will if anything increase as time goes on. Therefore what can be done to ensure that you know in advance what will happen to a pet in the event of a separation and/or divorce in a way that can be enforced?

In this case prevention is much better than cure and therefore the “residence” of a pet post-separation can quite clearly be set out in a pre-nup, post-nup or cohabitation agreement. This can also be set out in a separation agreement, but if this position is not agreed in advance parties may still face some of the difficulties highlighted in this article in reaching an agreement.

If you have not already done so, make provision today for your pets’ future…to avoid ending up in the “dog house”.

If you need some advice on how to deal with pets in separation and divorce then come and talk to us. We offer an initial fixed fee consultation for just £75 + VAT per hour. In order to make an appointment with our specialist Family Law Solicitor, Claire Weeks, please call 01992 463727.

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