Pet custody in separation and divorce: understanding the legalities and preparing for disputes

Pet custody can be a contentious issue for separating couples, with one in four divorces involving a dispute over who gets to keep the family pet.

In England and Wales, the law does not consider pets as family members, but instead as assets that can be distributed in the same way as material possessions. In this article, we discuss the legalities surrounding pet ownership and divorce, provide tips on how to manage disputes, and offer insights on international considerations.

Pet ownership under English law

In England and Wales, pets are considered as “chattel”. This means that they are treated as assets and are distributed similarly to other material possessions, like a TV, sofa or painting, in the event of separation. There may be exceptions for high-value animals or pets that are directly linked to family income, such as breeding or showing animals. Unlike children, the Court does not consider the welfare or needs of the animal when deciding who should get custody.

Preventing pet custody disputes

Pets can be important to their owners, making it worthwhile to create a written agreement, a ‘pet-nup’, to prevent pet custody disputes. This agreement would outline who owns the animal, where it will live, and what access each party would have to the pet in the event of a separation. The agreement can also cover financial considerations such as vet bills, food and insurance. If a future dispute arises, a written agreement can serve as highly persuasive or even conclusive evidence. A ‘pet-nup’ can exist as a stand-alone document or as part of a pre-nup, post-nup or cohabitation agreement.

International considerations

Different countries have different laws concerning pet ownership and divorce. For example, in some states in the USA, pets are treated more similarly to humans than objects by the law. In these places the court is more likely to consider the welfare of the animal, much in the same way as child custody is decided.

As a result, problems can arise when establishing the rights of pets when moving between countries or states. Therefore, it is crucial to seek advice from a specialist lawyer if a pet custody dispute is likely on relationship breakdown.

How we can help

Pet custody can be an emotional and difficult issue for separating couples. Understanding the legalities around pet ownership and divorce, as well as preparing for potential disputes, can help alleviate stress and uncertainty.

The family team at Clarke Willmott is a member of Resolution, a national body of family lawyers committed to dealing with disputes constructively. We can help by identifying potential issues and advising you on how to protect your position. This may include drafting a “pet-nup” with your partner or spouse, or if a dispute has already arisen, we can advise you on the options available to resolve the issue, such as mediation.