Who gets the dog?

A recent survey by The Co-operative Pet Insurance 2011 revealed that 20 per cent of separating couples with pets have fought for custody of their animal when their relationship failed.

The Animal Legal Defence Fund, which provides legal advice in animal disputes, has reported a huge increase in incidents where a judge has to deal with them. Children and finances are widely regarded as the most common causes of a bitter divorce but more and more we are seeing couples using the dog in the same way that the children sometimes get used, as a way to keep the relationship going, but at other times they are fighting because animals are considered family. 

Lawyers are  increasingly being instructed to draft ‘pet-nups’ and pet custody agreements and The U.S. appears to be blazing the trail. Across the pond there are more than 90 universities offering courses in animal law, including what happens to pets on divorce, and several law firms in the U.S. are reported to be earning significant sums from negotiating pet-nups and what happens to the pets on divorce, including maintenance arrangements for them.

Why are pet custody battles on the rise?

There is no obvious reason for the rise but many English divorce lawyers think that divorce cases in general have become more acrimonious in the past few years because of a rule change which overturned the old principle that the loser would pay the winner’s legal costs. 

They say the threat of that was an incentive to both parties to settle a dispute or simply give up.  The general principle now is that each party should pay their own legal costs.  This can be bad enough when you bear in mind that pet custody battles can easily cost around £30,000 for each party, but it was worse when there was a risk that you might lose your beloved pooch and £30,000 in addition to paying yet another £30,000 to reimburse your ex-partner for the costs they incurred too.

Another reason may be an increasing understanding by couples that they can indeed negotiate detailed agreements about pet custody and visiting rights which will allow them both to continue to have a relationship with their pet after separation and divorce.

A further attraction is that such agreements may well avoid a risky all or nothing Court decision. Following recent moves by the Courts to attach more importance to pre and post-nuptial agreements, there is a greater chance now that these agreements will be given force if the relationship sours and ends in divorce. 

Previously, such custody and visiting agreements would have been unheard of unless they were about the parties’ children. 

Where do you stand legally?

Although it shocks many loving pet owners, English law treats pets as no different from other personal belongings such as TVs and the toothbrush (known as ‘chattels’ in legal jargon).  Chattels are traditionally the last thing that couples and their lawyers turn their attention to when negotiating or litigating.

The fact that most chattels cannot easily be sold or split in two (as opposed to cash and the family home for example) and are left to one party or the other meant that many pet owners resigned themselves to assuming that one or the other of them would have to give up on their pet and leave it with the other party for good.

Now there is a wider recognition that sophisticated agreements can be reached instead. However this can work both ways: more money is being spent on reaching these agreements and having lawyers draft them, but when divorce comes there can often be as much if not more debate about the interpretation of the agreement and whether circumstances have changed too much to enforce it. 

Agreements should be clear, written down and realistic, not ad-hoc. Parties should try to think ahead, to envisage whether the custody and visiting arrangements they want are going to be appropriate and possible for their pet in the new circumstances in which they will be living post divorce. 

There is not much sense in fighting for, say, all five Labradors if financial constraints after divorce mean that you will be living in a much smaller property and will have to spend more time at work. And although no agreement can provide an absolute guarantee against litigation in the future, it is increasingly common to agree that if there is a dispute, then the parties must first attend mediation before heading into expensive and all or nothing litigation.

What if you’re not married?

Clear agreements can be more important for couples who are not married.  When divorcing couples fight over their pets, the judge may place a lot of importance on property-law factors such as who bought the pet, whether anything specific was agreed and whether one party gifted the pet to the other, but besides all this the judge ultimately has the power under divorce law to give the pet to the party that he/she thinks should look after it in the future. 

In the case of unmarried couples there is no such judicial power and discretion, and property law is all important. So the party who did not buy the pet and who does not have the receipt safely tucked away needs to be aware before they build a close and loving relationship with the pet that they must reach a clear written agreement with their partner about custody and visiting rights if they want to have a chance of maintaining that pet relationship if the human relationship sours.

James Riby is a family law expert at  Charles Russell LLP