I am focusing on dogs in this article as I am a dog person, but the same advice can apply to other pets.
What does the law say?
Presently, there is no specific law in England and Wales providing guidance on who gets care of the dog in a divorce/separation. This can be difficult for clients to understand as their dog is an important member of the family and it can be upsetting for a couple to have to choose who gets possession of the much-loved pet.
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In my experience, where there are children, the dog often stays with the parent who has main care of the children. The dog may have been bought for the children and can also be a great comfort for children when their parents get divorced.
The absence of law for pets means there is no right to a relationship with a pet or to visit a pet like there is for care of children.
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The dog is effectively real property under UK law. They are “chattels” so are considered in the same way as personal possessions such as furniture.
How to reach an agreement about the dog
The best approach is to reach an agreement between you about the care of the dog. Things to consider are:
- What’s in the dog’s best interests?
- What would cause the least amount of disruption to the dog’s life? Dogs like routine and can become unsettled with too much change.
- Which of you has the most appropriate living situation to meet the dog’s needs? It would probably be better for the dog to be in a house with a garden than a small flat with no outside space.
- Who has the most appropriate lifestyle to provide the best care for the dog? Which one of you is at home more and has time to walk the dog?
- Who meets the costs of the dog? Their food, toys, medical bills and insurance?
- Are you considering shared care? If so, would this be the best thing for the dog, or would it unsettle them too much?
Are you thinking about separation?
What if you can’t reach an agreement?
As mentioned above, the law would consider the dog real property and so if there were a dispute, the starting point would be to establish the legal ownership of the dog. Who paid for the dog? This may not be easy to establish as receipts may not have been kept, or the costs could have been met jointly.
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If you and your ex can’t reach an agreement on the care arrangements for the dog, you may wish to consider going to mediation. There, a trained mediator could facilitate discussions between the two of you to help you to reach an agreement which could then be recorded in writing.
If mediation isn’t successful or appropriate you could consider arbitration as an option. Here an impartial decision maker would decide who gets to keep the dog. They are likely to consider what is in the best interests of the dog. To do this, they may require advice from a dog expert. It is best to avoid ending up in court proceedings where at all possible. This would be expensive, complicated and stressful. And there is no guaranteed outcome.
I have read of some couples giving up their dog to a family member or friend because they couldn’t agree who should keep the dog after the separation. This is a great shame but definitely a much preferred option to the very sad situation where the couple surrenders their dog to a rescue centre for re-homing.
Written by Rhiannon Ford – Divorce Consultant.