Pet Custody after Divorce

With more than ten million cats and nine million dogs living in UK households, it’s perhaps no surprise that pets are sometimes a contentious issue when couples separate. But who gets your beloved pet on divorce? Do you have to go to court for access? And what is a ‘petnup’? Read this guide for answers to these questions and more.

What’s the law regarding pet custody and divorce?

Unlike children, where a careful assessment of the best interests of a child is taken into account when arrangements are made for access and residence on divorce, there is no such approach to your cat or dog.

At present, the law is clear. A pet is classified as a ‘chattel’ – essentially an item of personal property, unfortunately similar to a widescreen TV or piece of jewellery. While individuals often believe they have the right to a relationship with their pet, under the law the rights are related to who bought it, who paid for it and who pays the insurance for it.

What this means is, essentially, the party who bought the animal, and to whom it is registered, will retain ownership. The exception to this is if there is clear evidence the animal was gifted from one party to the other.

When considering issues regarding ownership of a pet, the Court will consider such issues as:

  • Who bought the pet
  • Whose name is on the ‘contract’ (for example, with the rescue centre)
  • Whose name is registered on the microchip database
  • Whose name is on the pet insurance certificate
  • Who the key ‘provider’ is (who buys the food and supplies)
  • Who is registered with the vet
  • Who actually looks after the pet (walks the dogs, feeds the cats etc.)

In some cases, it can be hard to prove some of the above. Individuals may not have documentary evidence of payments, and in these cases the issue can become quite complex. Here, the Court may then look at what is in the best interest of the pet and may even call in an expert witness to advise on the best course of action.

The Court does have the power to order that a pet shall live solely with one party. However, in the absence of clear evidence, the Court could also decide that the pet is jointly owned and may order that the pet be sold, and the proceeds shared if neither party is willing or able to take ownership.

What if the pets ‘belong’ to my children?

If the Court is deciding on what is in the best interests of a pet, then it may take into account whether an animal was bought for a child as a gift. If a pet ‘belongs’ to a child, then it is likely that the pet will continue to live with that child.

Of course, this can lead to other issues. For example, pets can be expensive, and the costs involved in feeding and maintaining them can be significant. This could then lead to further disputes about who should pay for the care of a pet.

Do I have to go to court to sort out pet custody on divorce?

No. It rarely goes that far. If you are on sufficiently amicable terms with your ex-spouse then you may be able to come to an arrangement regarding where your pet should live after you separate without Court action.

If you can’t decide then you could consider mediation, and solicitors mediate a large number of disputes involving pets. Issues to discuss will include:

  • What is in the best interests of the pet?
  • Who is best placed to care for the pet? (for example, if one of you goes out to work all day then it may be better for the pet to live with the other party)
  • Who will meet the cost of caring for the pet?

If mediation does not work, a pet could be considered as part of an overall financial settlement on divorce.

It’s worth bearing in mind, however, that if your pet is the only issue you cannot agree on, issuing court proceedings to resolve this matter could cost you a significant sum. It’s much wiser to come to an arrangement via your solicitors, or directly between you.

Can the Court make an order for pet access?

The Court has the power to order that a pet should live solely with one party.

However, the Court does not have the power to order access to a pet. It means that they do not have the power to order the legal owner to give access to a pet to the non-legal owner.

What if we have two or more pets?

If you have two or more pets, then it’s important to think about what is best for them. Dividing your pets so you take one each may seem fair, but if your pets are attached then this may not be in their best interests.

However, if your pets don’t get on it may make more sense to split them up.

Can we share custody of a pet?

A 2019 survey of more than 2,000 UK adults found that, in the event of a breakdown of a relationship, 47% would consider shared custody of a pet.

However, organisations such as the Kennel Club and the Blue Cross say that shared custody is not always in a pet’s best interests. Upsetting a pet’s routine can be extremely stressful and confusing for them, and it can negatively affect a pet’s personality.

Whether shared custody will work will largely depend on your pet.

  • Dog – If you’re considering sharing custody, then you need to consider what schedule will work best for your dog.

Even if you share custody, the dog should still have a primary carer who has the time and resources to care for the dog on their own.

  • Cat – Cats become more attached to their environment and are generally better off remaining with the individual who is remaining in their home.

If neither of you are staying in the same place, then you should consider who is in the best position to keep the cat, bearing in mind things like money, time and location (i.e. is the new home a flat, is it near a busy main road? etc.)

What is a ‘petnup’?

Just as there has been a rise in the use of ‘prenups’ in recent years, there has also been a rise in the use of ‘petnups’. Indeed, a recent survey found that over a quarter of adults would consider setting up a petnup agreement in case of a relationship breakdown.

Prenups typically list all the assets each partner owns and specifies who gets what if you separate or divorce. A petnup is a document in which you and your spouse agree the ownership, custody and other arrangements for your pet in the event that you separate.

In many cases, separation agreements, cohabitation agreements or pre/post-nuptial agreements will contain clauses relating to pets. However, standalone petnups are becoming more common.

A petnup is one way of taking the issue out of the hands of the Court and avoiding the expense of asking a judge to decide ownership and with whom the pet should live.

Over the last three years, family solicitors have recorded a 24% increase in requests to draw up pre-nuptial agreements which include the custody of a pet; also known as a ‘petnup’.

How do I manage a pet through a change in living arrangements?

A break-up or divorce is a stressful time for everyone included, and that includes your pets. Pets benefit from a fixed routine, and a separation can often have a negative impact on their security or daily routine.

Many pets are sensitive to changes in their environment so if you are arguing a lot or they sense tension, they can pick up on this and their behaviour may change. Your pet may become more jumpy, lose their appetite, or spend more time outdoors. Where possible, try and insulate your pet from these incidents.

Of course, a divorce may also mean that you and your pet have to move home. The days leading up to and immediately after your move can be stressful for your pet. An environment that they have been very familiar with in terms of smells and routine changes dramatically. Many dogs and cats can be affected by moving home.

One way to help your pet through a move is to book them into a boarding kennel or at a family or friend’s house for the duration of your move. This can reduce their stress during the upheaval of moving and while you get settled into your new home. You can then collect your pet when everything is unpacked and ready.

Settling into a new home is a big change for your pet. If you can, try to keep as much of the same routine as possible. If your pet has a specific time that they usually eat or go for a walk then try to keep this the same. Put familiar bedding and toys around your new home so that your pet is surrounded by smells they recognise.

For dogs, experts recommend that you slowly reintroduce them to being left on their own in your new home. With all the changes in their environment, they may find it hard to adjust for a few weeks. However, with care and patience, they will get back into their usual routine.

Do you need help with your divorce?

Get in touch now with one of our panel of specialist local family solicitors.

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