It seems almost a rite of passage to test a relationship for young couples nowadays to adopt a pet together once they live together before marriage or even starting a family. This “fur baby” whether it is a beloved dog, cat or horse can evoke strong feelings on who retains them on a break-up.
One option some pet-owning couples are now considering are a “pet-nup” which is a document that the parties agree will lay out what should be best for their pet on a break-up but what does the law say about this situation?
Under English law a pet is classed as property or a chattel hence the determination as to who owns a pet would ultimately be made under the rules of English property law.
A pet insurance company carried out a recent survey and they reported family pets are the biggest point of contentious in a quarter of divorces in the U.K.
I can vouch for that when I was instructed by a wife post-divorce, and she was aggrieved that her ex-husband just took one of the family dogs without her consent and she felt very strongly about having him returned as part of the financial aspects of the case. It was interesting to hear that their dogs were integral to their family especially as the parties had just gone through a cycle of failed IVF treatment. One can only imagine the love they had for this pet and the comfort it provided to them.
At the end of a marriage or civil partnership ownership of assets is determined in the family Courts. This is a discretionary system and is largely based on what the Court decides is fair and just, considering several factors. In this sense there is some scope for deviating from purely property-based laws to determine ownership of a pet.
The case for unmarried couples is however usually based upon who has paid for the asset or who has the title to the asset. With respect to a pet this will often turn on questions such as who paid for the pet or adoption fee, whose name appears on the microchip and registration papers or who took out pet insurance and paid for it. Sadly, caring for a pet, attachments or bonds are not usually considered in determining the ownership. The law provides little room to consider the welfare or best interests of a pet in deciding which party it should remain with.
There is however light at the end of the tunnel where a Court was creative in deciding pet ownership between an unmarried couple. The case (DM v SK 2023) involved a man and woman who adopted a dog together in 2020. The woman looked after the dog’s welfare including pet insurance and had a companion dog. Most important to note is that the contract was sent by the animal rescue charity to the man’s email address, and he paid for the adoption fee out of his account. The Court noted that the woman looked after the dog very well and that the dog mainly lived with her after separation. The court also noted that the dog had a strong bond with the companion dog and on this basis the court ordered that the woman should pay the man a nominal sum for ownership of the adopted dog to be transferred to her. Whilst this is not a binding case as it was from a lower Court, we are surely starting to see promising legal changes in other jurisdictions when it comes to pet custody such as in Switzerland, Spain, Portugal, and France.
In view of new and proposed legislation in England and Wales that recognises animal sentience and renter’s rights to keep pets there is a new horizon for policies on the pet custody front too.
Until then, my advice would be, couples who adopt pets jointly should discuss their options if the relationship ends. One option is to sign a pet-nup at the start of the relationship. Another option is to seek out a family mediator specialising in pet mediation to negotiate shared care. Most importantly if you are planning to adopt a pet with a partner think seriously of how you pay for your pet and whose name it is registered on its microchip and other important documents. This remains the strongest and safest evidence of ownership in the eyes of the law.