Who gets the dog: How the custody of pets is decided in divorce

Courts in Alaska now treat pets more like children in divorce proceedings, should the UK legal system be doing the same?

Olivia Blair
Monday 20 February 2017 11:48 GMT
(Getty istock)

A rarely talked about aspect of divorce is what happens to the pets.

For couples who spent many years together and jointly invested in their future - be it homes, children or finances - they may also have shared the care for a pet.

Under English law, pets are considered property just like cars, handbags and furniture so their welfare is not considered in the same way as for children - even though for many people they are an integral part of the family.

But things are starting to change: last month Alaska enacted a law which will treat pets more like children, the state said courts now will “take into consideration the well-being of the animal” when deciding which party the pets go to.

Their default option is to assign joint custody of the pets, like the preferred option for children.

Divorce lawyer Ayesha Vardag, who has represented several high-profile and wealthy clients at her family law firm Vardags, says pets can often be a source of huge emotional value and consequently conflict during divorce proceedings.

“It becomes something very deep-seated and they [the parties] hang their emotions onto it,” she told The Independent. “Part of their mental state is that it is the end of their love, marriage and family life and the pets, which were such an integral part of it, acquire such a huge emotional significance.”

A post on Reddit last year revealed a woman’s turmoil about leaving her husband partly because they shared two cats. “We have two cats that are literally the two things that I love most in the world,” she wrote. “One of them is more ‘attached’ to him and one of them is more ‘my’ cat. I would never want to separate him from ‘his’ cat because I know it’s best for both of them if they remain together but I love that stupid cat so god damn much, the thought of leaving him behind is extremely painful and distressing.”

Where a pre-nup is in place this may sort out the issue of who gets the dog or cat, but when this is not the case you need to look at the overall circumstances of the individuals involved in the dispute, Vardag says.

“If there is enough money you try to maintain all the things that are important to people and try to enable them to continue,” she explains.

This is why in a 2008 case an unidentified woman was awarded £50,000 a year in maintenance for the upkeep of her three horses through a legal appeal after claiming the horses had almost become her child substitute during their 11-year marriage.

“Of course, couples invest in pets with huge emotion, in some cases just like children,” Vardag says.

When Vardag has to negotiate a divorce for a client she says she tries to come to an arrangement with the other party when it comes to pets.

“You try to come to some sense of arrangement, try to work out the sharing times. It’s just like children really. If someone can spend more time with the animal they might be better there but might spend time with the other partner, who might be working more, at weekends.

“It is very similar to children in the way you deal with it in practical terms, it is just that the law doesn’t deal with it that way.”

A way in which the law defining pets as property could be considered outdated is that it is at odds with the fact that animals have rights under UK law, however there is difficulty in redefining the law as the question of how far you go comes into play.

“Do you come down to working out what the hamster should be doing and what its best interests are?” Vardag asks. “Perhaps you should they are living creatures which are protected by the law that have rights, it is probably right and proper that all these things are taken into account.”

However, she warns that couples can feud for so long over the custody of a pet that actually, given the animal's shorter life span, it might not be worth it. She references a case she heard of where a divorced couple argued for so long over who got the pet rabbit that it died before the proceedings were finalised.

She says both her fellow lawyers and the legal system should not dismiss the importance of pets when it comes to divorce and any custodial arrangements or disputes should be handled sensitively.

“People love their animals… this is not to be taken lightly by the courts and lawyers handling divorces. They have to understand that if somebody is in a fragile and vulnerable state anyway and feel they have lost much of what made their life worth living, these creatures that they feel give them unconditional love who makes them happy and who they love so deeply themselves can just tip them over the edge and be devastating."

“This can be the most difference to people’s lives and it’s something we have to treat with real sensitivity.”

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