Date Published: 20/01/2025

Author: Margaret Kelly-Edwards, Consultant

What happens to pets when a couple separate – and how mediation might help?

It may come as a surprise to you that when a couple’s relationship breaks down, the courts in England and Wales will regard a very much-loved pet in the same way as inanimate objects such as a sofa. It does not take into account the welfare of the pet when making decisions.

For pet lovers and owners, pets are very much part of the family and may have a special relationship with some or all of the family. Also, quite often one or more of the family have taken the main role in caring for and looking after the pet and so may be more attached to the pet than others. Until recently, it was thought that none of these important matters would be taken into account when there is a dispute about who a pet should live with. In a very recent case, where the couple could not agree about who should keep the family dog, the judge decided that the dog was a chattel. However, she found that who purchased the dog was not relevant. She noted that the dog had been living with the wife and the children since separation and agreed with the mother that 18 months was a long time in a puppy’s life. She went on to find that what was important was who was caring for the dog now. So, whilst acknowledging that pursuant to the law she must regard the dog as a chattel, she went on to consider what was best for the dog, before deciding that the dog (a ‘chattel’) should remain with the wife and children.

Legal ownership of a dog can be a contentious issue during separation. In a recent case of mine, the couple separated and my client, who was now living back with his mother, kept the dog. His mum was very close to the dog. Initially, the case was acrimonious, and his former partner insisted that as he had paid for the dog and had all the documentation to prove this, the dog should be returned to him. We managed to lower the temperature in discussions about what might be best for the dog and an agreement was reached that my client and his mum would keep the dog. This illustrates how dog custody disputes can be resolved through effective communication.

In other jurisdictions such as France, a pet is regarded as a living and feeling being. In Spain, the court considers a pet to have feelings. It now seems that England and Wales may be moving in this direction. However, it should be noted that a pet is still considered a chattel according to the law here, and the case referred to above could be confined to its specific facts.

Are the approaches taken in other jurisdictions/countries something that should be considered when exploring where to issue with divorce and financial matters if there is a possibility of more than one country determining these issues? Of course, this should be considered in conjunction with all other matters and not in isolation. Legal advice in both jurisdictions should be sought.

So, when buying a pet with your partner, it is best to sit down and discuss what will happen to your much-loved pet if you separate. Many people already enter into prenuptial agreements and postnuptial agreements (or cohabitation agreements for unmarried couples) to set out how financial matters will be dealt with if the relationship breaks down. It seems sensible that arrangements for any pets in existence at the time should also be covered in the agreement – this is often referred to as a “pet nup” clause. If you purchase a pet afterwards, you could enter into a pet nup just dealing with the ownership of pets if the relationship broke down.

What could or should pet nups cover? The couple can discuss what they think is important to agree if the relationship breaks down. This is likely to include where the pet will live. There may be an arrangement where the pet spends time in both new households. This arrangement could be referred to as a form of dog custody if it involves sharing responsibilities.

It would also be helpful for it to cover who is going to be responsible for the financial upkeep of the pet, including vet fees and insurance. There may be other matters that the couple consider important, and these can be discussed and put into the agreement.

If the relationship breaks down, what weight would the clause/agreement have? It would not be legally binding, but it is something that a judge would need to take into account as one of the circumstances of the case. A judge would make a decision based upon what (s)he considered fair, taking into account all the circumstances of the case.

On the breakdown of a relationship, couples often try to resolve issues outside of the court process. This is known as Non-Court Dispute Resolution (“NCDR”). Last year, the Family Court Procedure Rules were amended to encourage people to use NCDR. The court now has the power to adjourn cases to enable couples to engage in NCDR.

NCDR includes, but is not limited to mediation, collaborative law, and arbitration. Couples may also engage in evaluation by a neutral third party.

An arbitrator is similar to a judge and makes decisions based upon the law of England and Wales, so would not take into account the welfare of the pet but would take into account any pet nup as a circumstance of the case in the same way that a judge would.

Mediation is a process where the couple meet either remotely or in person to discuss issues arising out of the breakdown of the marriage. This can include finances and children; it could also include discussing what should happen to pets. Matters such as legal ownership of a dog and arrangements for pets after separation are often easier to address in mediation than in court.

Separation can be a very stressful time for people. Perhaps one of them would like to remain in the relationship, they could be worried about the future, how will they cope, where will they live, what arrangements will be best for the children and the family’s much-loved pets.

Mediation provides a space where both people can discuss the future, giving their points of view as to how things will look. If there is a pet nup, that is something that can be reviewed within the mediation. The mediator is completely neutral and will assist the couple in navigating the arrangements following separation. The mediator will help the couple listen and to hear each other. (S)he will acknowledge that things might be tough for one or both of the couple. The mediator will skilfully assist the couple to navigate the process, listening carefully to what is being said, reframing statements to assist the couple to see each other’s points of view. What can at the outset look like an intractable problem will quite often be resolved in this way and an arrangement reached for the pet’s future that both people are happy with.

For pets and divorce, it is important to understand how mediation can help simplify what can otherwise become a highly emotional matter.

If you would like any further information about pet nups, or NCDR please do not hesitate to contact us (margaret@kmjsolicitors.com). We would be happy to assist.

Margaret Kelly-Edwards is a Consultant at Ketley Miller Joels. Should you wish to contact her or one of our other solicitors, please write to info@kmjsolicitors.com or call 0203 709 6895.