Currently, the law in England and Wales treats pets as personal property or 'chattels'. Therefore, similar to a car, an item of furniture or an appliance. This is of course not how pet owners will view their companions, who might be treated more like members of their family than possessions. People often have strong emotional bonds with their pets, and this can cause particular difficulties on divorce.
In recent times, the courts have been looking more at the welfare of pets and how that impacts ownership. The recent case of FI v DO [2024] EWFC 384 provides a useful summary of the current approach by the Family Court towards pets on divorce.
FI v DO [2024] EWFC 384
In this financial remedy case, the husband had made an application for a shared care order and return in relation to the parties' golden retriever puppy. Both parties filed separate statements relating to the dog.
The husband said that he purchased the dog and that the wife did not make any financial contribution. He asserted that he trained the dog and had registered her as a disability support dog to support him with his mental health. He said that, after separation, the wife refused to feed or walk the dog, and he became the sole carer.
The wife did not accept this and opposed the suggestion that the dog was registered as a disability support dog. She said the dog was purchased as the children were distraught after losing their previous dog. She stated she was the registered keeper and had registered her at the kennel club and paid the costs of her upkeep. She did not believe it was in the dog's best interests to spend time with the husband, citing an incident where he forcibly took the dog from the maternal grandmother during a walk.
The husband had been arrested by the police and reported to the RSPCA, and the children were said to be very upset by the incident. She added that the cost of the dog was shared between them and one of the children using her birthday money.
The husband had also made a separate civil claim in respect of the dog, the facts of which were also disputed.
The judge, having considered the evidence, found that the husband had only registered the dog as a disability support dog to support his claim that she should be returned to him, and saw her as a potential income stream. The judge accepted that the parties jointly purchased the dog, but that this was irrelevant to the issues in the case, and accepted that the dog had been purchased using monies from herself and the parties' child.
The judge did not accept that the wife did not care for the dog after separation and found that the husband had forcibly taken the dog from the maternal grandmother.
The judge, referring to RK v RK [2011] EWHC 3901 (Fam), concluded that who purchased the dog was not as important as 'who the dog sees as her carer. This is not who had previously looked after the dog, but who does now'. The wife had careered for the dog for 18 months which the judge accepted 'is a long time in a dog's life'. He held:
'The wife's evidence as I have set out was compelling but more importantly in my view showed someone who understood about dogs, was compassionate and would always put the dog's interests first. The dog's home is with the wife, and she should stay there. It would be upsetting for both the dog and the children were those arrangements to alter. The husband has managed without a dog for 18 months and it does not therefore seem necessary for his support, even if that were the case which I do not accept was the position at the time the parties separated.'
The judge ordered that the wife should retain ownership of the dog.
How other countries approach pets' welfare on divorce
The law in England and Wales is considerably behind the law in other countries in terms of the approach taken towards pets on divorce.
In Spain, the courts are obliged to prioritise the pet's welfare and care needs, and they might also consider the emotional bonds with family members.
In Australia, a bill has recently come into effect which reforms the legal treatment of pets on divorce. The bill acknowledges the emotional ties that owners have with their pets and that they should be considered as more than just property on divorce. The bill provides a new framework for determining ownership of a pet, taking into consideration:
- how the pet was acquired
- who has ownership or possession of the pet
- the extent to which each party cared for, and paid for the maintenance of, the pet
- any domestic violence which one party has subjected or exposed the other party to
- any history of actual or threatened cruelty or abuse by a party towards the pet
- any attachment by a party, or a child of the marriage, to the pet
- the demonstrated ability of each party to care for and maintain the pet in the future
- any other fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account
There are many other countries which adopt a 'best interest' test towards family pets.
Pets on Divorce working group
In 2024, a working group was established which consists of solicitors, barristers, vets and an animal behaviouralist. The focus of the working group is to bring about a change to the law of England and Wales so that pets are no longer treated as property on divorce.
We also have an insightful blog on how pet owners can make provision in their Wills for the maintenance of their pets.
Conclusion
Reform is hopefully on the horizon. In the meantime, pet owners can explore 'pet-nups' and shared care agreements which reflect their intentions in respect of their pets. These can cover issues such as living arrangements, food, medical decisions, vet expenses and insurance. Whilst these documents are not legally binding, they are evidence of the couple's intentions and will hopefully assist with determining arrangements on divorce.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
