But who keeps the dog?!
- AuthorMarcus Crawley
George Eliot once wrote that “Animals are such agreeable friends – they ask no questions; they pass no criticisms”. When considering the impact of divorce, dissolution or separation, usually people’s main priority is to think about who the children will live with and how the finances/personal possessions are going to be divided. But what of those “agreeable friends”? What if you cannot decide who keeps the dog?
Whilst we have all heard of people leaving their money to the cats’ home in their Wills, it may surprise people to learn that the question of who a pet is to live with is an issue that is dealt with by family solicitors time and time again when considering the breakdown of a relationship. Clients will often ask whether there can be some sort of arrangement whereby the pet spends time with each person or whether they can have ‘sole custody’ of them.
The law in respect of the ownership of animals has not changed since the 18th century. As far as the law stands, a pet is a chattel (or personal possession) and is to be dealt with in the same way as the sofa or a lamp. In the case of Binstead v Buck (1777), it was held that the owner of a domestic animal retains ownership of it, even if it strays, and keeping and feeding another person’s animal does not cause a change in ownership, or even permit the retention of the animal pending payment for the money spent on its upkeep.
If you are a married/cohabiting couple, the court would consider who paid for the pet and the other financial contributions that each person has made towards them. The general position in respect of chattels bought for joint use is that they do not automatically become joint property. That said, there may have been things said or done which indicate an agreement that the ownership of that pet was to be held in equal shares. If the Court is asked to deal with the issue of ownership of a pet, they would have to give consideration as to the circumstances surrounding the purchase of it (for example, was the pet owned by one of you before the relationship started, or was it bought as a gift) and the subsequent decisions/discussions that have taken place about them (for example, in the case of a horse, does only one of you feed/clean/ride them? Is it described as being ‘your horse’ or ‘our horse’?).
In an ideal situation, parties will agree what is to happen with the pets. In more amicable breakdowns, some people agree that the pet will live with one party but that the other can walk/look after the pet when they want to. If there are children involved, the pet can sometimes travel between homes. Some people fear that this will cause too much disruption for their pets and agree that the other person can have them.
If agreement cannot be reached, there are applications that can be made, either as part of existing matrimonial proceedings or under the Married Women’s Property Act 1882 (“MWPA 1882”). That said, the remedies under the MWPA 1882 are limited and may not provide an outcome that is acceptable to either party. It could either lead to one party being declared the sole owner or, if it decided that the pet is jointly owned, the pet could be sold and the proceeds divided equally between you. An application within normal matrimonial proceedings is likely to be preferable as the Court will have greater discretion when it comes to determining what is to happen to the pet (though the Court is unlikely to want to deal with the question, if it can be avoided).
The majority of cases settle without having to issue court proceedings. Whilst our pets mean the world to us, the reality is that it is unlikely to be commercially viable to issue proceedings if the only sticking point is the ownership of a pet. Instead, there are numerous forms of dispute resolution that could help break the impasse. You could attend mediation and have the assistance of an independent mediator. In arbitration, you could obtain a legally binding decision from an arbitrator on the issue. You could even try a collaborative meeting with your respective solicitors present.
Whether you are able to reach an agreement in respect of the division of your assets (including your family pet), or need help in doing so, it is advisable to seek legal advice in respect of the claims arising out of the breakdown of your marriage/relationship. If you are considering separation or require assistance in relation to issuing divorce proceedings, please feel free to contact a member of our Family Law Department on 01242 574244 and we will be happy to meet you and discuss your situation.