Family lawyers often have to deal with disputes regarding children and the sharing of matrimonial assets upon divorce, but what happens when you need advice on who would get the beloved family dog.
There is in fact no specific legislation or case law that sets out how the court will deal with disputes regarding pets or what factors will be considered relevant when determining this very sensitive issue.
Pets are not children
Surprisingly, the court would treat the pet in the same way as any other matrimonial asset – such as the TV, dining room table and chairs or the garden fork! The difficulty with this approach is that, unlike proceedings relating to children, the court is not required to consider what is in the best interests of the pet and will simply treat it as an item of personal property that will be awarded to one or other of the parties.
This can result in a very harsh outcome for the unsuccessful party, as they will have no visiting rights or involvement with their pet after the decision has been made.
A lengthy legal battle over who gets the family pet will also be very stressful and expensive and can often detract from the main proceedings, preventing an early resolution and increasing costs.
The best approach therefore remains to try and negotiate an agreement as this will give the parties far greater scope to agree a ‘shared care arrangement’, visiting rights and other issues that the court simply will not get involved with.
Avoiding potential disputes
If the parties want to avoid potential disputes, then they should enter into a pre- or post-nuptial agreement to record what will happen to the pet in the event of separation.
Although pre-/post-nuptial agreements are not legally enforceable in their own right:
(1) provided they have been freely entered into
(2) with a full appreciation of its implications; and
(3) provided it is considered to be fair
then the Court should give effect to it.
Certainly, where the family pet is concerned, a well drafted and thought out pre-/post-nuptial is likely to be determinative and save a lot of heartache and distress for both the pet and owners.
Author: Darrell Webb, Calibrate Law
DISCLAIMER: This article should not be regarded as constituting legal advice in relation to particular circumstances. It is merely a general comment on the relevant topic. If specific advice is required in connection with any of the matters covered in this article, please speak to Calibrate Law directly.
Published on 20th June 2019