Who gets the dog in the divorce?

By Connie Smith, Family Law solicitor at Irwin Mitchell

With a new lockdown meaning many more people have been working from home and long walks becoming the height our social calendars, significant numbers of families have this year welcomed a new dog into their home. According to Direct Line, between March and September 2020, 2.2 million families adopted or purchased a dog. I will be adding to those statistics in a few days, when I welcome a rescue dog adopted from Cyprus. My colleagues across the family team have done the same, with one characterful rescue pup winning a prize at our annual awards this year.

With more families having pets than ever before, sadly they will inevitably become a feature of more divorces. It is not uncommon for a dispute to arise over who cares for the family pet upon a divorce. However when clients seek our guidance as to how best to determine arrangements for their pet, they are often shocked to hear that in England and Wales pets are viewed as property, in the same manner as your sofa or CD collection. This doesn’t reflect the reality that for many, pets are valued members of the family, meaning that who cares for a pet upon divorce becomes an emotive and often heart wrenching issue, particularly at a time of upheaval and insecurity.

As pets are viewed as property in England and Wales, consequently pet custody disputes fall within financial remedy proceedings upon divorce in the family courts. There is very little case law to draw upon when attempting to draw principles for disputes over pets, with pet custody disputes tending to form an ancillary issue to main financial remedy proceedings, addressed in a few lines of the odd judgment. This reflects the reality that the resources of the court are limited and few Judges are likely to be persuaded to spend much time on this issue, in light of the overriding objective that issues should be dealt with proportionally, by way of allotting them an appropriate share of the court’s resources. This is however not likely to be much comfort if you cannot agree with your former partner who should care for your pet. It is also not reflective of the reality that the emotional bond between pet and owner is special; you can replace your Bentley but you can’t replace your Buster.

Consequently some jurisdictions have started to tentatively adopt a new approach to pet ownership. In the Israeli case of Ploni v Plonit, when considering a pet custody dispute brought by an unmarried couple, the Judge sought to answer the question of who should have custody of the family pets by trying to determine what was for the “good of the animal”. To reach a conclusion, they heard expert evidence from an expert on animal behaviour.

This has striking similarities with the approach of the English and Welsh Courts when determining a child’s living arrangements. When making a child arrangements order, the court will work through the “welfare checklist” to decide what is in the child’s best interests, often guided by expert evidence.

It seems unlikely that there is much appetite for reform of pet custody disputes to better recognise the important place of pets within families at this time. Any future reform which allowed for the issue of pet custody to be brought discretely before the courts may also lead to expensive litigation. In the case of XI v YI Williams J when faced with a possible disagreement about access to family pets sensibly recommended that the parties seek the help of a mediator or arbitrator, with experience of resolving pet custody disputes. This is likely to be a practical and proportionate way to try to reach an agreement with your former partner about custody of your beloved pooch.