November 1, 2018
But who gets the dog? – Pet custody in divorce and separation
On the breakdown of a relationship (whether a marriage or civil partnership or of co-habitation), the focus will usually be on the arrangements for any children of the family and sorting out the finances. Much time, money and effort is often spent arguing about these important things. However, there is nothing in the Children Act 1989 that allows you to apply for ‘custody’ (in common parlance) of the family dog (however much they may be like a child to you!). Similarly, there is no provision when you are completing your financial disclosure (Form E) in financial remedy proceedings to stake a claim to your furry friend (unless perhaps it is a prize winning poodle worth many thousands of pounds). This begs the often asked question of “But who gets the dog?”.
Domestic animals are in fact personal property – in the same way that we can own a laptop, a piece of jewellery or a car. For some items, like a car, there is an official record of the “Registered Keeper”, which while not conclusively proving ownership, is good evidence of who the owner is. However, for most items of personal property there is no such record and therefore other factors will need to be considered to work out their owner.
The main factor will usually be who paid for the pet in the first place. A written contract is likely to be conclusive. However, if the pet was a gift, then factors such as who is the only or main contact at the vet and who pays for the food etc may become relevant.
Importantly, the Court can only declare the owner of the pet – either in a claim in the civil courts or potentially in the family court under the Married Women’s Property Act 1882. It has no power to make orders imposing a shared care arrangement with the dog spending every other weekend and a night in the week with one ‘parent’. If you want to achieve this type of arrangement, then this is best done through mediation.
If you have a pet swan then be careful, all white swans swimming in open and common rivers belong to the Crown by prerogative right (Case of Swans (1592) 7 Co Rep 15b at 16a).
What about puppies or kittens? The general rule is that the young will belong to the owner of the mother until they are sold or given to someone else (interestingly this rule doesn’t apply to cygnets).
If you believe that you are the rightful owner of the family pet, then it may be that you have a valid claim to have that pet returned to you. Conversely, if you have the pet in your possession and are being hassled about it, you could seek a declaration from the Court that you are the rightful owner to head off any claim by your ex-partner.
Finally, couples can avoid these disputes by thinking ahead and including carefully worded provisions in a pre-nuptial agreement or cohabitation agreement as to what is to happen to any pets in the event of relationship breakdown.
If you would like help with a dispute about a family pet, please read our simple step-by-step guide, then get in touch with our clerks who will discuss your needs and put you in touch with the barrister best able to help you.
David Lewis-Hall | Divorce and Finance