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Who keeps the dog?

National Dog Day falls this year on Wednesday 26 August.  We are a nation of dog-lovers so this is an appropriate time to consider what happens to the family dog (and other pets) upon the breakdown of a relationship.  Although for many people their dog is another family member, the court’s approach is that pets are considered personal property and are treated in the same way as other chattels.

This can be highly unsatisfactory to pet-owners who often have very strong emotional ties to their animals, and disputes are often akin to children arrangements rather than who gets to keep the artwork or the jewellery, although if the animal has financial value this can complicate matters further.  It is important to keep costs proportionate in these circumstances.  Here is a handy guide to the issues that should be considered:

  • As with any chattel, the court can decide who keeps the family pet in the event that the parties cannot agree;
  • Regardless of who has looked after the pet for the majority of the time during the relationship, disputes may be resolved simply by looking at who originally bought the animal and/or who financially maintains the animal.  Legal ownership will triumph in the majority of cases.
  • Pedigree dogs and race-horses will be attributed a monetary value and will need to be considered along with the other matrimonial assets up for division, as will any future financial gain derived from the animal (e.g. breeding);
  • The cost of keeping a pet may have an impact on income needs and therefore maintenance claims.  The facilities needed to keep that animal can form part of an overall financial award.– (stables for a horse, for example);
  • The court is not obliged to have regard to the welfare of the pet, as would be the case in children matters.  There is no statutory power to impose a contact schedule for the non-resident owner to spend time with the pet.  However, the court may look at maintaining the status quo and who is best placed to care for the pet in terms of day-to-day care and income needs;
  • Mediation is often a successful way to resolve the issue of pet ownership in the event of a  relationship breakdown;
  • It would be sensible to set out how the issue of pet-ownership will be dealt with in a pre-nuptial or post-nuptial agreement or cohabitation agreement, in order to avoid future disputes.

It may be time for the courts to adopt a more ‘welfare-based’ approach.  In Alaska a change in statute in 2017 expressly requires the courts to account for the well-being of the animal and the interests of companion animals when deciding who retains ownership of the family pets upon divorce or dissolution.  There is a danger that this approach could cause more problems than it solves, resulting in more delays and expensive litigation for divorcing couples.  In the meantime, the key advice is plan ahead and agree future arrangements in writing during happier times.

For more information on the issues raised in this blog and to learn more about what relationship breakdown advice is available, please do not hesitate to contact us.

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