In January 2022, Beth Woodward posted the article below reflecting on how pets are treated by the courts when their owners divorce.  42 Bedford Row are a set of barristers with expertise in family law who have recently set up a new practice area specialising in animal welfare. The group is in a unique position to advise and advocate on the increasingly important and changing issues impacting on animal welfare post Brexit and in the light of recent legislation.

The group is led by Marcia Hyde, a barrister who we can highly recommend from personal experience. If you would like to find out more you can contact us in the first instance or alternatively visit their website www.42br.com/areas-of-expertise/animal-welfare  

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As Spain joins France, Germany, Switzerland, Austria and Portugal in legally recognising the needs of animals, I look at what rights pets have in divorce cases.

Over my years as a family lawyer, I have encountered many heart wrenching cases where pets, usually dogs, are fiercely fought over. There is no denying that dogs are treasured members of the family and so on divorce, it can come as a shock to hear that in law they are, quite simply, possessions. In a recent case, we settled the house and all the financial aspects of the divorce but the couple who were childless simply could not agree on who should have their dog. In the end, the issue of the dog got listed for a hearing. Ultimately, one of the spouses agreed to give up custody of the dog and receive a lump sum equal to 50% of her purchase price.

I have heard anecdotally about a couple who took a dog to the park. Both whistled for the dog and it was agreed in advance that the dog would belong to whomever the dog ran to. I admit I would be very nervous to recommend this course of action. We all know how keen a dog’s sense of smell is.

Applying a strict legal approach then, a dog (or other pet) belongs to the person who purchased him/her. His or her value equates to what she/he was bought for. It may therefore be important to be able to provide a bank statement or similar showing out of which account your pet was purchased. If purchased out of a joint account, then the price to be paid for your pet is 50% of the purchase price. This does, of course, represent very rough justice and does not reflect the true value of your pet or help when the couple both want to keep their beloved pet.

In some cases, I have known a dog to be dognapped. Sadly, possession is 9/10ths of the law and the police are unwilling to become involved in disputes of this kind.

Sometimes, judges are willing to give a judicial indication to a couple about how to approach the problem. Whilst none of this is written into the law, this suggests that some judges are willing to take welfare issues into account. Judges may consider a dog’s routine and who is most available to stay at home with a dog and provide company and walks.

On occasion, I have been asked to draw up a contract dividing custody. Whilst this may work for some, it is very difficult to enforce such an arrangement and it requires a degree of cooperation that often lessens as time goes on.  In Spain, judges are now obliged to consider the fate of an animal with the same importance as the fate of other family members. The change in law followed on from a case in October when a judge in Madrid gave an unmarried couple joint custody of their pet dog. The dog spends a month with each of them and both are legally responsible. Following the change in law, owners must guarantee the pet’s wellbeing and if either spouse has a history of cruelty to animals they may be refused or lose custody of the pet.  Happily, in the UK, the Animal Welfare (Sentience) Bill is currently awaiting the report stage in the House of Lords. The legislation will ensure the government considers how all its policies affect the welfare of sentient animals.

Beth Woodward is an experienced specialist Family Law solicitor. If you are going through a divorce or separation and need assistance with regards to your family pet or any other Family Law matter, please get in touch with Neves Solicitors. All our family solicitors offer a fixed fee 60-minute initial meeting.