Pet-Nups
An increasingly common choice for modern married or even cohabiting couples is to have a pet instead of having children. “Fur babies”, as they can often be referred to, are becoming increasingly common for a number of reasons. However, should a couple divorce or separate, this can give rise to disputes as to what can happen to a pet or pets. Disagreements can sometimes become as heated as though couples were arguing over children.
However, as animals cannot speak for themselves and are unlikely to understand what is happening, how can any such disagreements be resolved? Can these be avoided?
The Law
In Jersey, as in England and Wales, pets are currently treated as chattels or belongings. Therefore, there is no legislation and limited legal case law for how disputes surrounding pets can be decided. Disagreements on this however can lead to arguments, hostilities and could even derail wider financial agreements as considerations for pets override all other matters that need to be resolved.
Previously, the strict legal position has been to look at how a pet is owned in terms of any legal papers or documents regarding the purchase of a pet and who paid for them. For unmarried couples who are not captured by any family law provisions as married couples would be, this is usually a starting point.
However, for married couples the Court may be willing to take into account other factors in determining how arrangements for family pets may be resolved upon divorce. In the UK case of RK v RK [2011] EWHC 3901, the Court determined that the considered approach that should be taken is not who paid for or has title for a pet, but rather who has assumed the practical caregiving role (in terms of feeding, walking, vet trips etc.). This approach has since been cited as foundational in disputes over pets on divorce and has provided an anchor for courts to determine pet ownership by reference to patterns of care and ongoing responsibility, rather than pure legal title.
The Court went one step further in the case of FI v DO [2024] EWFC 384 (B) (humorously “the Fido case” ) concerning a family dog in a divorce. The Husband claimed that he owned the dog as his emotional support animal, and it was registered as the same. The Wife, however, contended that the dog was more akin to a family pet and had been treated as such by her and the children. The Court found that the Husband’s claim was litigation-driven, as his registration of the dog as a support animal had taken place after the parties had separated. He had also been seen to cause the dog harm when forcibly removing it from the Wife’s mother whilst she took it out walking. By contrast, the Wife’s evidence appeared sound. The dog was therefore ordered to be transferred to the Wife, where it would remain after divorce.
When making such determinations, the Court can consider wider factors which may influence its decision. In other jurisdictions, for example Australia, the law has even been changed to identify factors which the Court should take into account when considering pet ownership (noted as “companion animals” under their Family Law Act 1975):
- The circumstances in which the animal was acquired;
- Who has ownership or possession of the animal;
- The extent to which each party cared for, and paid for, the maintenance of the animal;
- Any family violence to which one party has subjected or exposed the other party;
- If there was any animal abuse or threat of animal abuse towards the pet as a form of family violence;
- The attachment or relationship of each party and any children to the family pet;
- The demonstrated ability of each party to care for and maintain the animal in the future, without support or involvement from the other party; and
- Any other fact or circumstance which the Court considers needs to be taken into account.
It should be noted that, if there are children in a marriage, one paramount consideration that the Court takes into account is the welfare of any children in a divorce. Depending on their relationship with a pet and the potential extent that any separation from the animal could have on their welfare, this could be an important consideration for the Court.
Other points that parties may wish to consider concerning animals include how much the pet may be worth – not just in terms of how much was paid for it but also if, for example, the pet was used for breeding – there is likely to be a significant difference in the value between a pet gerbil or hamster and a pedigree cat, dog or race horse!
Additionally, not only should the future cost of a pet be considered in terms of affordability but it might be that if a pet is used for breeding this could impact one party’s income if they are a registered breeder and rely on the pet for this purpose. Every pet’s situation is different and may need to be determined on the facts.
What does this all mean – the emergence of “Pet-Nups”
As a consequence of the rising importance and significance of pets in relationships and the lack of firm legal guidance surrounding the same, some couples are now choosing to enter into agreements surrounding their furry (or otherwise) friends. These agreements, or “Pet-Nups” as they are being dubbed, are akin to other agreements such as pre-nuptial or post-nuptial agreements in that they record what the parties intend to happen to a pet should they separate.
These agreements are not legally binding, but can be persuasive should any disagreement over a pet result in a court dispute, or become a factor for the Court to determine in a wider dispute, as they show a clear agreed intent with respect to a pet. This can save time, cost and disagreements arising should the worst happen and will provide clear guidance for couples as to what they would like to happen with their pet upon separation. There is no limit as to what a pet-nup can contain – whether this be in respect of ongoing expenses, who retains an animal after separation or if the animal is to go between homes, or if there is to be a consideration of a change of registration or legal ownership – an agreement can contain anything that couples consider they may like to record arrangements for.
The Future
As matters stand, there are indications of movement regarding the increased significance of pets in addition to or even instead of children for modern couples and, as is being seen with other jurisdictions around the world – not just Australia, but in Spain, Portugal, New Zealand, Colombia, France and certain states of the USA as well as other places – reforms to law to recognise animals as a different category of personal possession: living and feeling. However, any local law reform is unlikely to occur for the foreseeable future. Therefore, a pet-nup could be the way forward for couples wishing to ensure arrangements for their pets are in place should their relationship not go as they hope.
Get in Touch
If you want to discuss a pet-nup, or any kind of wider pre-nuptial or post-nuptial agreement, our expert team can help with all areas of Family Law and will be able to assist you. Call us on 01534 760760 or email family@lgl.je.
