Alaska has recently indicated that it will allow judges to start considering the “wellbeing of the animal” in cases regarding the custody of pets, with the potential for expert evidence being used to establish matters in respect of the welfare of the pets. Whilst this is the position in a number of jurisdictions, this is a far stretch from the current rules in England and Wales.
Upon divorce or separation, often the presence of the beloved family pet continues to provide one party with well needed support and consistency. Be it the family cat, the children’s gerbil, the exceptional tortoise or man’s best friend; there are a variety of pets to be considered upon separation. But where should the pet go on separation – who should they stay with?
In England and Wales, the general rule is that pets are treated by the court as chattels (objects within the household) or personal property within family financial proceedings. The Court in England and Wales shies away from sentimentality on this point and does not entertain the idea of “custody agreements” for pets. Should you be able to agree a shared schedule for the pet with your soon-to-be ex, then that is great, but it cannot be formalised into an enforceable Court Order. And what happens if you cannot agree?
Some pets come with hefty vet bills or other potentially enormous outgoings (pedigree or thoroughbred pets or those who require their own stables for example can cost a vast amount to maintain) and may raise the question as to how to fund this. Others are reasonably economical but of course the sentimental value of a pet cannot be discounted – after all, they are part of the family, aren’t they?
Outgoings for pets should be contained within any budget or list of outgoings that you undertake. If you are looking to keep the pets with you, then you need to factor in the cost of keeping them. This will be considered when looking at any claims for maintenance (although if it is clearly unaffordable for either party to continue to pay for an expensive pet following separation there may need to be some practical consideration as to whether it is possible for either of you to keep them). Arguments in respect of maintaining the status quo, lifestyle and day to day care for the pet (as a practicality) are often made to the Court when determining who should keep the pet.
There is also a question with regard to the value of the pet and whether they are a valuable asset (after all, pedigree and thoroughbred pets may be highly sought after). This can be important in respect of the division of capital and the Court may have to consider the value of the pet as an asset in order to potentially consider this within the financial position. In addition, with very valuable pets, it may be that there is some value attributed to their offspring and breeding rights which may have to be considered.
It is frequently said that costs in dealing with pets are not proportionate, as legal costs of arguing about pets can be far more than the “financial value” of the pet themselves. All in all, even from a financial position it is not necessarily straightforward when considering the pet as property, but when adding in the emotional dimension, decisions in respect of pets can become particularly difficult.
The status of a pet within each family will vary and it is not unusual for pets to be treated almost as children within a family. In these cases, separation from a pet in addition to the breakdown in the relationship can be very difficult. This can cause problems in negotiations between parties, as the emotional element of pet ownership should not be discounted and can factor heavily in respect of financial settlements.
How pets are dealt with within a divorce or separation can be difficult, but the lawyers here at Paris Smith are experienced in dealing with matters including a vast array of family pets and family dynamics to assist you in this and provide you with legal support and advice if necessary. We will watch this space to see if the Courts in England and Wales change their approach to pets in the wake of a number of jurisdictions taking steps towards a wider consideration of pet needs…