In 2024, there are approximately 36 million pets, excluding aquatic animals. It is estimated that about 36% of households own a dog, and approximately 29% of households have a cat.
Family pets often play an integral role in family life, and it will come as no surprise that pets and divorce can become a hotly contested aspect of settlement negotiations when a couple decides to divorce or separate.It is currently estimated that one in four divorces includes a dispute over a pet.
What are the rights of pets in a divorce?
A court will view a pet as property, rather than a member of the family. No special consideration is given for the emotional bonds between owners and pets in divorce proceedings, unlike children in divorce.
In the United Kingdom pets do have legal rights and protections under the Animal Welfare Act 2006. These welfare rights include:
- The right to live in a suitable environment.
- The right to eat a suitable diet.
- The right to exhibit normal behaviour patterns.
- The right to be housed with or apart from other animals as appropriate.
- The right to be protected from pain, suffering, injury, and disease.
Failure by a pet owner to meet the above rights and a pet’s welfare can result in prosecution, with potential consequences including unlimited fines, imprisonment for up to 6 months, or being banned from owning animals in the future.
In other countries pets have far more rights, such as Spain where in January 2022, the Spanish government introduced far-reaching legislation whereby animals will no longer be considered ‘things’ and instead be treated as sentient beings. These new laws will apply to divorce proceedings and Family Courts will now have to consider the animal’s welfare and the family’s needs when deciding who will care for the pet. Caring responsibilities may be shared, and it will be mandatory to determine a home for the animal.
How are pets treated in divorce?
Under English law, pets are treated as ‘chattels’, which amounts to a movable item of personal property. In effect, cats, dogs, and other animals are given the same legal status as other inanimate objects such as cars, paintings, or jewellery.
Courts do have the power to order the transfer of the legal ownership of a pet from one party to the other, just as it would do for any other item of personal property.
If parties cannot agree who will have ownership of the family pet, then the courts will check who has proof of ownership and rule in their favour. The legal owner has no binding obligation to give the non-legal owner access to their pets.
A court will look at:
- Who bought the animal?
- Who primarily cared for it?
- Who paid the vet bills?
- Whose name the pet is registered/microchipped in.
The only exception is if there is clear evidence the animal was subsequently gifted to the other party.
In some cases, following a divorce and separation, disputes regarding the family pet have been resolved by transferring ownership and pedigree from one person to another or sharing custody of the pet as well as sharing maintenance costs.
As an animal is considered a chattel in the same way as a car or a possession, a Court can order transfer of ownership. A Court can also calculate upkeep costs for your pet when calculating income needs as part of the overall financial settlement.
How can disputes involving pets and divorce be avoided?
One effective solution is to enter into a Petnuptial agreement.
A Petnuptial agreement is an agreement that specifically addresses the care and ownership of pets during divorce or separation. It is a legally drafted document that outlines the terms of pet ownership, custody, care, and expenses, ensuring that the welfare of the pet is considered and protected. Petnups are becoming increasingly popular as more people view their pets as important family members and want to ensure their pets are well taken care of in the event of a separation.
All these details can also be included as clauses in a Cohabitation agreement, Separation agreement, or a Prenuptial agreement, rather than making a separate Petnup.
A Prenuptial agreement is a legally binding contract entered into by a couple before marriage or civil partnership. The main purpose of a prenuptial agreement is to specify how financial matters will be dealt with in the event of a divorce or separation. This can include what should happen to the family pet in the event of separation or divorce.
A Cohabitation Agreement is a legal document for unmarried couples who wish to live together without getting married. It is a formal way for couples to protect their individual interests and provide clarity on issues (such as pet ownership) that may arise if they split up.
What can be included in a Petnup?
Factors to consider in a Petnup are:
- Who will the pet live with?
- Who will care for it?
- Who will pay the vet bills?
- Who will pay for food and other expenses?
- Who will look after the pet when you go on holiday?
It is important to reflect on what is in the animal’s best interests. If one of you goes out to work all day and the animal is left on its own, then it might be fairer for it to live with the person who is around the home more.
You could adopt a ‘shared care’ approach. For example, a pet dog can regularly be taken for walks by the party with whom the pet no longer lives, or they can provide free pet-care whilst you are on holiday. Make sure that both of you have the time and resources to care for the animal if you decide on shared care.
The agreement is essentially a contract, and, on this basis, a court would very likely uphold the terms of it should you divorce.
Are Petnups legally binding?
Like Prenups and Separation agreements, the law does not presently recognise Petnups as being legally binding, however like Prenups and Separation agreements the court is likely to take such an agreement into account if they have been entered into fairly.
What determines ownership of a pet?
This can often be a sensitive and contentious issue where there is no agreement.
If there is a dispute about ownership of a pet, a court will consider the following evidence in making a ruling about ownership:
- Who purchased the pet. The strongest evidence of ownership is typically a receipt or other proof of purchase.
- Whose name is on the microchip and/or kennel club registration.
- Who pays for the pet insurance and vet bills.
- The name registered on the pet’s insurance policy.
- While not a legal determinant, who has been the pet’s primary carer.
- If the pet was adopted, whose name is on the adoption agreement.
- Whose name is listed on the pet’s veterinary records and medical history documents.
If a couple has a prenuptial, postnuptial or Petnuptial agreement that addresses pet custody, the terms of the agreement will typically be followed.