What happens to pets on divorce/separation?

The English courts do not generally make decisions about who gets which chattel and try to encourage the parties to agree a division of the chattels between themselves. The court uses its discretion to make decisions about pets if it is deemed necessary to determine the appropriate outcome for a case. For example, there may be situations in which the pet has financial value or generates an income for the family by being a thoroughbred horse with demand for stud usage.

Other legal systems adopt different approaches to pets. For example, in America, a ‘petnup’ can be entered into setting out what happens to the pets in the event of the relationship breaking down and the courts have enough evidence from pet psychologists about what is best for the pet’s long-term interests. In recent years Spain has introduced new legislation which deems that pets are to be treated as ‘sentient beings’ rather than chattels. This imposes an obligation on the judge handling the case to take the pet’s welfare into consideration when deciding with whom the pet should reside. This is similar to the consideration given to children arrangements in English law; when there is a dispute about contact arrangements for children, the welfare of any child will be of paramount consideration. However, when it comes to pets no such consideration is given and for the time being they remain an item of property whose future is decided by a relatively arbitrary decision of a judge if the parties cannot agree.

So, is there a solution for deciding who should have the care of a beloved family pet?

Whilst they are not legally enforceable in England, couples can still enter into a ‘petnup.’ The court may decide to take this into consideration, however, the judge is not required to do so and may just treat the pet as it would a chattel. Therefore, unfortunately for pet lovers in England there is currently no simple answer to the above question. There has been an increase in the use of ‘petnups’ in recent years and the hope for the future is that the court will start to look at these agreements more favourably which will then lead to a change in English law.

If you are facing a divorce and looking for legal advice, please do not hesitate to contact a member of our Family Team on 020 8290 0440.