Divorce or Separation - the Custody of Pets

Divorce is invariably a difficult time for the majority of people. Whilst the no-fault divorce has made the majority of divorces less contentious, the division of marital assets and the access and custody of any children of the marriage are often the most complex and upsetting parts of the separation. There is another aspect of divorce that causes almost as much distress, which is who retains possession of any pets the couple care for. Pets are often much-loved by their owners and neither party wants to be removed from them and possibly never see them again.

Under the law in England and Wales, pets owned by a married couple are regarded as chattels and therefore are distributed in the same way as any other material possessions that comprise the marital assets. The court does not have a duty to consider the welfare of the pet. Although there are some countries that introduced laws to oblige the court to consider the welfare of the pet.

Daniel Theron, a Partner, commented “The couple can each present an argument as to why they should retain custody of the pet. Evidence such as an invoice demonstrating who paid for the pet or documentation from a rescue shelter. put their case as to why they think that they should have custody of the pet and the type of evidence presented to the court could take the form of an invoice demonstrating who bought the dog, or whose name is registered with the Kennel Club or on a contract with a rescue shelter. Also, the name on the microchip database and recorded at the vet’s practice as well as who pays for any insurance.” Daniel further mentioned “one of the most compelling things is who currently has the care of the pet and how suitable they are to continue to care for the pet following the divorce. It is unlikely that custody will be given to a person who is out at work all day long leaving the animal alone in the house.”

Any legal dispute carries a cost and thought should be given as to whether a reasonable solution can be arrived at without resorting to legal action. There are different considerations with regard to high-value animals that are directly linked to family income, such as breeding or show animals. There are also differences in the way pets are regarded depending on whether the couple are married or living together. The pets in the care of a married couple are viewed as marital assets whereas pets owned by unmarried partners are personal property and belong to the person that bought them unless they gave the pet to their partner as a gift. The court cannot give visitation rights but if an agreement is drawn up in connection with the pets this can be included.

Giambrone and Partners’ family lawyers advise that it is a wise decision to draw up a written agreement that outlines who owns the pet and in the event of a separation where the pet would live and who would care for it. Financial considerations including food, insurance and veterinary bills can be outlined, as well as visitation rights. This could be included in a pre-nuptial agreement or a cohabitation agreement or it could be a stand-alone document. There have been a number of high profile separations where the parties involved cannot easily agree on who continues to care for the pet dog. Robert Pattinson and Kristen Stewart fell out over their dog Bear, Ms. Stewart wanted joint custody but lost to Robert Pattinson. Whereas Taylor Swift kept the two cats she and Calvin Harris had as pets but granted visitation rights to him. Currently the acrimonious separation between Eamon Holmes and Ruth Langsford has the added issue of who should care for their dog Maggie. As the dog is 14 years old it is important that they decide as soon as possible or they may find themselves in the position of the couple who argued for so long of the custody of their pet rabbit that it died before they had settled the issue.

Giambrone and Partners’ family lawyers strongly advise that this issue is considered at the point when the pet is obtained. Our lawyers can assist in negotiating an agreement to manage this sensitive issue should it arise during the course of a divorce.

Daniel Theron advises on litigation in family law, employment, cross-border debt recovery and defamation. Daniel has considerable expertise in contentious cross-border family law, including complex financial arrangements and enjoys a high level of success in both debt recovery and employment law. 

Daniel enjoys a reputation of being meticulous in his analysis of the merits of a matter and tenacious in his pursuit of a successful outcome for clients. He frequently impressively navigates challenging situations culminating in an excellent level of achievement, in excess of all expectations.

If you would like to know more about any aspect of divorce or prenuptial agreements please contact Daniel's clerk Joseph Crick on JC@giambronelaw.com of please click here