Pet pre-nuptial agreements, also known as pet-nups, are becoming increasingly popular in the UK as more people consider their furry friends to be an important part of their lives. A pet-nup is an agreement that sets out how a couple will care for their pets in the event of a breakup or divorce.
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In this guide, we will look at the law surrounding petnups, including what they are, how they work, and what factors to consider when creating one.
What is the law surrounding disputes over pets?
In the eyes of the law, a pet is not considered a member of the family, despite them being allowed to go away with you on holiday or sleep in your bed. Instead, the law views and treats pets in the same way as it does furniture or other matrimonial property.
If you are separating and have children, then it is often the case any pets remain with them. This is because children are generally deemed to have made strong emotional connections with their pet, and separation would be traumatic. How this is arranged in practice could happen in a variety of ways: where care is shared, for example, a pet may travel back and forth with the children.
The situation may be different if the pet was owned by one party before the marriage/civil partnership. Then it could be argued that they should remain with that person, irrespective of the bond built up with the other party.
Thinking ahead and preparing a pet-nup before getting married is a good way to pre-empt and tackle any potential issues surrounding pets if your relationship breaks down.
What is a pet pre-nup?
A pet-nup is very similar to a regular pre-nuptial agreement and sets out how a couple will care for their pets in the event of a breakup or divorce. The agreement can cover a wide range of issues, including who will have custody of the pet, who will pay for the pet’s care and expenses, and what will happen if one party wants to relocate and take the pet with them.
How do pet pre-nups work?
Pets are considered to be personal property, which means that their ownership can be determined in the same way as other possessions, such as cars or jewellery. As a result, it is possible to include pets in a prenuptial agreement. A court has the power to order a pet to be sold, and the proceeds to be divided, assuming the pet holds any monetary value, in the same way as any other type of property.
A pet-nup agreement considers the pet’s welfare and records who should keep them in the event the relationship breaks down. Such a document then acts as a binding contract and, in the event of a dispute, can be put before the court as evidence of an existing agreement, which will help the judge make a decision.
That said, pet-nups are not 100% legally binding, because it is up to the court to decide whether or not the pet-nup should be enforced. When deciding, the judge will look at things like when the agreement was entered into, whether there was any form of coercion, whether it was entered into freely, or if legal advice was obtained.
Recently, courts have increasingly attached more weight to pet-nups, particularly if the couple knew the implications of the agreement and entered into it of their own free will.
What should be included in a pet-nup?
When creating a pet-nup, it is important to ensure that both parties understand and agree to the terms of the agreement. The agreement should be clear and specific, and it should cover all the issues that are important to both parties.
It is also important to ensure that the agreement is fair and reasonable. A court is unlikely to enforce an agreement that is heavily weighted in favour of one party, or that is so restrictive, it would be difficult for one party to comply with it. When creating a pet-nup, there are several factors that should be considered. These include:
- Who will have custody of the pet?
One of the most important factors to consider is who will have custody of the pet. This should be clearly stated in the agreement, and it should take into account what is in their best interests. For example, if a couple owns a dog used to having the freedom of a garden, and the other party has moved somewhere without one. There, it is probably better for the dog to remain with the party who has the benefit of the outdoor space.
If both parties want custody of the pet, it may be possible to create a joint custody arrangement. However, this can be complicated, and it may be better to agree on a primary custodian who will have the pet for the majority of the time.
- Who will pay for the pet’s care and expenses?
Another important factor to consider is who will pay for the pet’s care and expenses. This can include things like food, veterinary bills, and grooming. It is important to ensure that the agreement is fair and reasonable, and that both parties contribute to the cost of caring for the pet.
- What will happen if one party wants to relocate with the pet?
If one party wants to move with the pet, it is important to consider how this will be handled in the agreement. This may include things like travel expenses, or arrangements for transporting the pet. It is also important to ensure that the relocation is in the best interests of the pet, and that both parties agree to the terms of the relocation.
- What will happen if one party cannot care for the pet?
It is important to consider what will happen if one party is unable to care for the pet. This may include things like illness, injury, or financial difficulties. The agreement should set out the steps that will be taken if one party cannot care for the pet, including who will take over responsibility.
- Dispute resolution: what will happen if the relationship breaks down?
Finally, it is important to consider what will happen if the relationship breaks down. The agreement should outline a process for resolving disputes that may arise regarding the pet’s care and custody. This may include mediation, arbitration, or other forms of alternative dispute resolution.
What are the criteria for a valid pet-nuptial agreement?
The law surrounding pet prenuptial agreements is relatively new and has not been tested in court. However, it is generally accepted that pet prenups are legally enforceable, provided they meet certain criteria.
The first criterion is that the agreement must be made voluntarily and with full knowledge of the implications. Both parties must have had independent legal advice, and the agreement must be signed at least 21 days before the wedding/civil partnership. This is to ensure that both parties have had sufficient time to consider the agreement and neither party has been coerced into signing.
The second criterion is that the agreement must be fair and reasonable. The court will not uphold an agreement which is one-sided or leaves one party at a significant disadvantage. In the case of pet prenups, this means the agreement must consider the welfare of the pet and ensure it is adequately provided for.
The third criterion is the agreement must be in writing and signed by both parties. This is to ensure there is a clear record of the agreement and that both parties have acknowledged their obligations.
In practice, a pet prenup is likely to include details of who will have ownership of the pet in the event of a divorce or separation, as well as arrangements for the pet’s care and welfare. For example, the agreement might specify who will be responsible for feeding and walking the pet, who will take the pet to the vet, and who will pay for any veterinary bills.
It is important to note that a pet-nup cannot override the law on animal welfare. This means that if the arrangements in the pet-nup are not in the best interests of the pet, the court may refuse to enforce the agreement. For example, if the agreement requires the pet to be housed in conditions that are not suitable for its welfare, or if the pet is to be kept in a household where it is not welcome or will be mistreated, then the court may consider the agreement to be unenforceable.
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