What happens to pets in divorce or separation?

Often, the most emotional issues are the arrangements for any children. However, many separating couples equally love their pets and they are considered to be an integral part of the family, so their welfare is an important matter to factor in to any separation proceedings.

According to the World Animal Foundation, more than half of British adults own a pet with 49% of households consider pets as part of the family. It is therefore hardly surprising that when a couple decides to divorce, conflicts can arise over the family pets.

What do divorce laws say about custody of pets?

In England and Wales, there is no specific law regarding ownership of pets following divorce. However, pets are classed as ‘chattels’. Chattel is a legal term that refers to personal items such as contents of the home, cars and jewellery, but excludes financial assets such as the matrimonial property. Whilst this is the legal stance, for many families, pets are not just material goods; they are often at the heart of the home and are valued family members.

The court will initially consider who is the owner of the pet based on the considerations set out under Section 25 of the Matrimonial Causes Act 1973.

Proof of ownership can be established through registration, veterinary records, microchipping, tags, adoption or purchase records, or a pet agreement. Consideration is also given as to who is the primary carer of the pet, for example who walks the dog and who contributes financially towards food and veterinary bills. The parties’ financial positions, work commitments and other responsibilities will also be considered.

How to decide who keeps the family pet after divorce

Whilst pets are important to many separating couples, the unfortunate reality is that pursuing an application through court is unlikely to be proportionate as it can be very expensive and time consuming. More suitable ways to deal with the future arrangements for the family pet are by mutual agreement, mediation or arbitration.

In 2020, it was reported that celebrity, Ant McPartlin and his former spouse reached an agreement to share the care of their dog. This included time for the non-resident party to take the dog for a walk and have the dog to stay for weekends.

Whilst pet ownership on separation is becoming an increasingly common issue, there is very limited case law in relation to pets following divorce, some of which includes:

1. S -v- S [2008] EWHC 519 (Fam): The wife wished to keep her horses following divorce. She was awarded spousal maintenance to allow her to maintain three horses.
2. IX -v- IY [2018] EWHC 3053 (Fam): The wife and the husband owned two dogs. It was decided by the court that the wife would keep one dog and the husband would keep one. The court also stated that if there was any dispute regarding the arrangements for the dogs, the parties should consider mediation or arbitration.
3. RK -v- RK [2011] EWHC 3910 (Fam): The wife made a claim to keep a painting and one of the family dogs. The judge stated that he would not make an order in the wife’s favour regarding the dogs because, based on evidence, the dogs were primarily cared for by the husband.

In order to avoid a dispute over a much-loved pet, it would be sensible to consider entering into a ‘pet-nup’. This is an agreement between the parties setting out ownership and the arrangements for a pet both during a marriage and in the event of a divorce or separation.

A ‘pet-nup’, similar to a pre-nup, is not automatically legally binding, but holds weight if a dispute arises following separation.

Wherever possible, it is most practical to agree up-front who will keep the pet so that stressful and expensive court proceedings can be avoided.