How Family Courts approach the ownership of family pets on divorce or separation

An arguable lack of special legislative provisions that address what should happen to family pets upon separation has, some commentators assert, resulted in a pet unfriendly legal landscape which fails to treat pets like family, and ultimately falls short in reflecting the emotional bonds shared with them.

Under the current statute in England in Wales, pets are classed as chattels and therefore, treated in the same way as any other property in the family home.

Ultimately, when tasked with identifying the rightful owner, although the courts do consider other factors, it ultimately falls down to who holds ownership of the pet. This may be indicated by who is registered at the vets, who funds and looks after it, and who purchased it.

However, the recent case of FI v DO [2024] represents a potential move away by the courts to a possibly more pet-centric approach which acknowledges animal wellbeing above ownership. Clearly, the courts have began considering the issue of pets in divorce proceedings. In his judgement, Judge Crisp’s comments placed emphasis on the fact that who keeps the family pet ultimately comes down to who principally looks after it, where it considers a safe place, and where it feels it belongs. Crucially, who purchased the dog is less significant than who it sees as its carer. This case has the potential to be a seminal case in paving the way for how courts deal with pets in divorce in the future.

Many recent opinion pieces are encouraging lawmakers to follow in the footsteps of Australia,  who have introduced new laws which provides a criterion for judges, and presents a series of factors they should consider when deciding who keeps the family pets.

In the event of a divorce or separation, there are certain steps you can take which may prevent some of the distress associated with pet custody disputes. These include:

Early discussion – Having early conversations about pet custody can avoid last-minute, high tension disputes.

Pet-Nups – A pet specific pre-nuptial agreement outlining custody arrangements, financial responsibilities, and visiting rights should the relationship dissolve. It sets out who will deal with the ownership and expenses of pet upon divorce. Although it is not legally binding, it can provide the court with evidence of initial intentions of the parties and can aid judges in decision making.

Documentation – Keeping detailed records of pet care, expenses, and time spent with each party can substantiate claims.

Mediation and Non-Court Dispute Resolution (NDCR) – disputes to be resolved by mediation or arbitration where they should have regard to the needs of the pet as well as who feeds, walks and plays with them. Parties can select an arbitrator who has experience of dogs and an understanding towards pet welfare.

Overall, the family court having no requirement to consider the welfare of pets seems outdated, especially when compared to other countries. However, FI v DO does represent a potential shift by the courts to consider wider factors rather than purely ownership when dealing with pets in divorce and separation proceedings.