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For Richer, for paw(er)

A recent survey by the charity Dogs Trust highlighted that a fifth of separating couples found deciding who should keep the family pet as stressful   as deciding where and with whom the children should live.  Astoundingly, one fifth of all contested   financial proceedings involve issues related to the ownership of a pet. A tenth of couples have turned to mediation  to reach an agreement about this issue. Pet owners are always attached to their animals, who, in many cases,take on an almost child-like role within the family unit.

In the face of this issue, increasing numbers of couples are turning to solicitors to obtain ownership rights over their pet and a number of cases concerning pets are being fought in the Court arena.This is a trend that is likely to increase. A third of couples interviewed indicated that they would be prepared to sign some form of nuptial agreement to deal with the issue of pet ownership in the event of a   relationship breakdown. It appears that couples are increasingly prepared to fight for visiting rights,   ownership, breeding rights and even maintenance in relation to their beloved animals.

Although frequently terms such as ‘residence’ and ‘contact’ (or even ‘access’ and   ‘custody’) can be found in the media to describe  such pet disputes, in fact neither of these terms are correct.  Though many of the litigants regard their animals as part of the family, unsurprisingly, pets do not fall under the remit of the Children Act 1989 and section 8 Orders will not apply in circumstances where one wants a favoured pet to reside with them after divorce.

The Law

The law in England and Wales regards pets as chattels in the context of a financial settlement, to be divided up in the same manner as the dining room table or television. There is no evidence that the Court will have regard to the ‘welfare’ of the animal in the way that they clearly would in the context of a Children Act matter. However, arguments about the continuation of the status quo, as far as the animal is concerned, and demonstrating that one party is the ‘principal carer’ of the animal may have some resonance.    Arguments relating to the cost of maintaining a pet may also have impact in relation to income needs.   Practically speaking, sharing a dog or cat after break-up may prove unworkable as many couples want to cut all emotional ties and simply do not wish to be visited by their ex every few weeks to pick up the dog and take him for a walk; though, this request can be a common one.

Arguing over the family pet may seem fairly trivial but this is often seen by parties as a touchstone in the settlement, with disagreements over the pet threatening to derail entire negotiations.    Ownership of one particular Doberman was referred to as ‘deal-breaker’ at an FDR attended recently (a comment which did not find favour with the Judge).  People have very strong emotional ties to their pets and they can manifestly cling on to these vestments of their old life at a time of otherwise great instability and turmoil.

If   the animal has a noteworthy financial value this can add a further dimension   to the process.  Pedigree dogs or race-horses,   for example will be ascribed a monetary value and are likely to appear on asset schedules and may be of note within the overall division of the   family’s assets.   There may also be arguments over breeding rights, sharing in financial gain from any off-spring or possible future earnings relating to that animal.

 North American approach

Family solicitors in England and Wales are used to dealing with children matters or, indeed disputes over chattels, but are less experienced when it comes to dealing with pet disputes.

In North America, such litigation is more common. Certain federal courts apply something akin to the welfare principle and will have regard to the best interests of the animal in certain circumstances.  Some jurisdictions in the states have even gone as far as to treat the pet in question as if it were an individual rather than property.  In Alaska, the case of Juelfs v Gough, 41, P2d 593 (Alaska 2002), the Court upheld the lower Court’s   decision of awarding sole legal ownership of the family’s Labrador Retriever   to the husband due to safety issues related to the dog remaining at the   wife’s residence because of the presence of other dogs who may have harmed   him.

In the appellate Court of New York, in the case of Raymond v Lachmann 695 NYS.   2d 308 (N.Y. App Div. 1999), the decision was made to reverse the decision of the lower Court to award sole ownership of the parties’ cat to the Claimant under a straight property analysis as it was held that the cat was a ‘feeling   individual who had lived prospered loved and been loved’ solely by the   Defendant.  A Court in Virginia also decided that the ‘happiness’ of the cat took precedence over a former couple’s property rights (Zovko v Gregory, No CH 97-544 (Arlington County   (Va.) Circuit Court, October 17 1997).

In   the Canadian case of Boschee v. Duncan, a wife claimed $200 per month to   support her husband’s St. Bernard dog (in addition to claiming $1500.00 per   month in spousal support). The wife argued that she required additional support   to cover the veterinary costs and the costs of feeding and caring for the dog after her husband left the dog in her care. The court found that large St. Bernard dogs cost more to maintain than smaller varieties of dog.   In that case, the court ruled that $200 per month was a reasonable sum to compensate the wife for the time and   expense required to look after her husband’s dog and ordered him to pay this as a dog maintenance cost.

A number of celebrity couples have also argued publically over their pets in their divorce proceedings, both in the states and in the UK; including former English rugby union player, Will Carling and his ex-wife Julia, who eventually came to an agreed settlement over their Labrador named ‘Biff’ and footballer George Best and his wife Alex, who were locked in dispute over their 2 Red Setters.

There are limited reported financial proceedings in this jurisdiction involving animals.  These cases treat the animals in question strictly as chattels.  Arguments related to the cost of maintaining the animals and preserving the status quo, as opposed to the welfare of the animal itself.

In the case of S v S [2008 EWHC 519 (Fam), the Judge recognised a wife’s needs to include those of her horses and upheld her periodical payments award of £50,000 per annum to maintain her 3 horses against the husband’s appeal.   In this case she argued that her love of horses was sufficiently important to her that substantial maintenance should be payable for their upkeep.

The unnamed couple from Gloucestershire were childless and divorced after 11 years of marriage. The court heard that the wife had miscarried in 2001 and regarded her three horses as part of the family and akin to substitute children. Her husband had bought her a foal as a tenth wedding anniversary present in 2004, when she already had two horses that she had purchased with her own money.

When the marriage broke down, the wife claimed that she required financial assistance in order to be able to keep and maintain her horses. She argued that her husband’s past actions showed his awareness and understanding of the depth of her passion for horses.

The main issue to be decided at the appeal was whether the wife’s housing costs should include an element that would allow her to buy a property with adequate stables for her horses and whether the decision at the first instance placed too much weight on the wife’s needs and those of her horses at the expense of the husband’s own needs.

Sir Mark Potter, the President of the Family Division at that time, reviewed the evidence and concluded that the Judge in the first instance, District Judge, Michael Segal, was not wrong in his judgment and dismissed the husband’s appeal.  He stated that “during the marriage the horses played a major part in the wife’s life with the consent and encouragement of the husband.” The Court upheld the award made by the District Judge of maintenance of £80,000 a year, including £50,000 for the upkeep of the horses, plus £900,000 for a house with grazing land suitable for the animals. Sir Mark Potter did point out, however, that the wife should expect to fund the horses herself if the husband’s income should fall in the future.

In the case of RK v RK [2011] EWHC 3910 (Fam), as a secondary issue, the wife asked the Court to make an order relating to the ownership of one of the family dogs.  This application was unsuccessful as the Judge decided that the husband had been mainly responsible for caring for the dogs during the marriage.

Mr Justice Moylan stated at paragraph 85 of his judgment:

There are a few subsidiary issues I must determine, including the wife’s claim to a painting and to one of the family dogs.  On the latter issue, I do not consider it appropriate to make any order in respect of one of the dogs because, on the evidence I have heard, they would seem to have been looked after principally by the husband.

In this instance, therefore, the Court examined who principally cared for the animal when assessing the claim and gave emphasis to the idea of maintaining the status quo.

Conclusion

The key points to remember in relation to pets on divorce are that the Court can decide who keeps the animal (as with any chattel); the cost of keeping the animal can form part of the income needs of the parties, and thereby part of a maintenance award and finally the facilities needed to keep that animal (kennels or a ménage, for example) can form part of an overall financial award.

As the law is very different in England and Wales to many North American states, it is advisable to plan ahead as far as possible when it comes to the future of pets (and other matrimonial property) upon the break-down of the relationship and consider a pre or post-nuptial agreement.  If this is not in place then the best approach remains to try and negotiate an agreement as, unless the law changes, the welfare of the pet will not be considered and the pet will continue to be treated as a chattel.

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