Who gets the dog? Pets on divorce and the family court’s changing attitude
The following article was originally published in Professional Adviser.
As a dog owner and family law solicitor, I find it astonishing that the law on how pets are treated in divorce in England and Wales has not evolved over time to reflect the emotional importance of pets in modern family life.
In contrast, many other countries including Spain, France, Portugal, Australia, New Zealand and Canada have amended their legislation to prioritise animal welfare over ownership.
The law currently classifies pets as personal property or chattels, with legal ownership linked to who purchased the animal or in whose name it is registered. After that, the primary approach is to divide them up within a divorce, along with other household contents such as the kitchen table. During the pandemic, pet ownership soared, particularly for dogs. This has had a knock-on effect: family law practitioners are now frequently seeing more disputes in relation to pets, sometimes with high values apportioned to them – for example, if they are a Crufts participant. Providing advice on the tricky issue of what is to happen to the pet on divorce or separation is becoming far more common.
There have been few published cases concerning pet disputes, but there does seem to be a shift in approach following the appropriately named case of FI v DO [2024] EWFC 38. The judge in this case considered factors such as who had primarily cared for the family’s labrador, the pet’s welfare and routine, and who the pet was emotionally tied to, to be more relevant than any legal ownership or financial claims. The wife was successful in demonstrating that she had provided all the care since separation, that she had compassion and knowledge about the dog, and that she put the dog’s welfare first. It also helped that the dog ran back to the family home after it had been removed by the husband! This case indicates that the family courts will not necessarily treat a pet as a chattel.
When a client is concerned about what might happen to a much-loved family pet on their divorce, the first step will always be to encourage the client to reach an agreement about who will keep the pet or whether it might be practical for each spouse to spend time looking after it. When that isn’t possible, non-court dispute resolution methods such as mediation or collaborative law can help couples discuss their options (about the pet and other issues arising from their divorce) and reach a fair, welfare-focused outcome in a cost-effective way without the stress and expense of litigation. At this stage, the costs of maintaining the pet should also be discussed, and whether these costs should form part of a claim for spousal maintenance.
What should a 'pet-nup' contain?
With family lawyers seeing more divorces involving issues concerning pets, I would urge professional advisers who are on familiar terms with their clients to encourage those who have pets to consider incorporating arrangements for them in a pre- or post-nuptial agreement, or via a stand-alone pet nuptial agreement. A pet nuptial can cover what is to happen to the family pet if there is a separation or divorce, and can encourage parties to have discussions early on, helping to avoid disputes in the future.
A pet nup could cover the following:
An agreement of this type is very helpful, as it can be completely personalised to the animal and the couple’s requirements, and will cover issues that are out of the court’s remit. Such an agreement could be particularly important if there are pedigree animals or pets of high value. The presence of such an agreements can prevent costly and acrimonious disputes further down the line. Without such an agreement, advisers need to be aware that a beloved pet may be used as a bargaining chip within financial negotiations, particularly against the party who is emotionally invested in that animal. We are already aware of this happening in our local courts and when parties become acrimonious, the claws can come out!
Where are we headed?
There is now a Working Group on Pets on divorce and separation, backed by Resolution the community of family lawyers who advocate resolving issues in a non-confrontational way. The group, which comprises of family lawyers and a vet, are seeking to change the law to bring England and Wales more in line with modern social attitudes towards pets so that animal welfare is prioritised over the issue of legal ownership.
The case of FI v DO underscores that while pets remain legally classified as chattels, the courts are showing a greater willingness to consider their welfare and caregiving responsibilities. Advisors working with divorcing couples should not dismiss pets as a minor issue, but instead recognise their growing importance, address arrangements for pets early on and, in the event of a dispute, think outside the box and consider all relevant factors, with a particular emphasis on resolving any dispute in the animal’s best interests instead of just focusing on legal ownership.
For more information, please contact:
Learn more about our expertise in this area:
More articles from RWK Goodman:
View more articles related to Family, Pre and Post Nuptial Agreements and Separation & Divorce