As a family lawyer I often have to deal with disputes regarding children and the sharing of matrimonial assets upon divorce, but I was really taken aback when I was recently asked by a client to advise on who would get the beloved family dog.
But then perhaps not so surprising after the recent, highly publicised custody fight, celebrity Ant McPartlin has had with his ex-wife over his beloved five-year old Labrador, Hurley. Hurley has subsequently become the country’s most famous canine.
Having never been asked to advise on the division of a matrimonial pet before, to be perfectly honest I was unable to answer the question straightaway. After looking into the matter, I was surprised to discover that there is in fact no specific legislation or case law that sets out how the court will deal with disputes regarding pets or what factors will be considered relevant when determining this very sensitive issue.
Pets are not children
So how will the Court deal with a dispute regarding who should retain the family dog or cat? Well, surprisingly, they will treat the pet in the same way as any other matrimonial asset – such as the TV, dining room table and chairs or the garden fork! The difficulty with this approach is that, unlike proceedings relating to children, the court is not required to consider what is in the best interests of the pet and will simply treat it as an item of personal property that will be awarded to one or other of the parties.
This can result in a very harsh outcome for the unsuccessful party, as they will have no visiting rights or involvement with their pet after the decision has been made. A lengthy legal battle over who gets the family pet will also be very stressful and expensive and can often detract from the main proceedings, preventing an early resolution and increasing costs.
The best approach therefore remains to try and negotiate an agreement, as this will give the parties far greater scope to agree a ‘shared care arrangement’, visiting rights and other issues that the Court simply will not get involved with.
Avoiding potential disputes
If the parties want to avoid potential disputes, then they should enter into a pre- or post-nuptial agreement to record what will happen to the pet in the event of separation. Although pre-/post-nuptial agreements are not legally enforceable in the own right, provided they have been
(1) freely entered into;
(2) with a full appreciation of its implications; and
(3) provided it is considered to be fair then the Court should give effect to it.
Certainly, insofar as the family pet is concerned a well drafted and thought out pre-/post-nuptial is likely to be determinative and save a lot of heartache and distress for both the pet and owners.
If you would like to discuss entering into a pre-/post-nuptial agreement, please contact Darrell Webb 020 3988 2028 or email@example.com
This paper is intended to be a brief note for clients and other interested parties. The information is believed to be correct at the date of publication but should not be relied upon as a substitute for professional advice. Please speak to a member of our team.