Pets and Separation - A Bone of Contention

Fur can often fly over who gets to keep the family pet when couples decide to separate and often one party seeks legal advice in relation to the family pet.

Because of this, couples are increasingly entering into pre-nuptial or pre-cohabitation agreements or agreements at the time of purchase to regulate the pet’s ownership and  clarify parties’ intentions as to who will keep the pet should they separate. Agreements can  also specify that both parties will continue to share the pet’s care.  Doing so is certainly to be recommended as it prevents an added worry at the time of a separation about the care the pet will receive, and also the added hurt at a difficult time should a much loved pet be unfairly withheld from one of the parties as a direct consequence of the relationship breaking down.

How are Pets treated under Scots Law?

Where residence of a child of the family is in dispute, then in the absence of parental agreement, a court makes an order on what is considered to be in the best interest of the child.  Welfare of the child is paramount.  However, the same consideration does not apply to family pets, yet a dog or cat most likely has an attachment to all members of the family.  It might also be vital in helping a particular child adjust to changed domestic circumstances after separation

In Scots Law pets are treated as the personal property of the person who purchased the animal.  Courts do not generally make decisions on personal property and tend to urge parties to agree division.  Unlike household goods purchased during a marriage or cohabitation, there is no presumption of an equal share in pets.   The issues of pet-ownership, especially  if a pet was acquired during the relationship can be less than straightforward and lead to disputes and even contested court actions, especially where both parties have competing  claims based on  such factors as who paid the purchase price, who the pet  is chipped to,  and who registered  it with at the vet and pays vet’s  bills.

Pets can also be costly to maintain so perhaps it is not surprising that pet ownership and pet maintenance are an increasingly disputed issue in separation.  It also may be necessary to properly focus on whether the pet has any financial value – is it a Crufts champion or future actor as well as being a family pet for example?

The Family Law (Scotland) Act 1985 Section 9 (1) (c) recognises the economic burden of caring for a child of the marriage under sixteen after divorce.  This situation has not been extended to cover animals. 

Section 9 (1)(d) allows an award to be made to a party who has been “dependent to a substantial degree on the financial support of the other party”.  They may be awarded “such financial provision as is reasonable to enable the party to adjust over a period of not more than three years from the date of Decree of Divorce to the loss of that support”.  

Section 9 (1) (e) allows an award to be made to a party who at the time of divorce “seems likely to suffer serious financial hardship as a result of the divorce”.  A party should be awarded “such financial provision as is reasonable to relieve him/her of hardship over a reasonable period”.  

These principles were considered in respect of animals in the case of EG v CG [2016 CSOH 32] The Pursuer sought a periodical allowance starting at £2750 per month effectively to finance the upkeep of her three horses.  This sum was to be reduced following the death of each horse.  At the Evidential Hearing expert evidence was led to the effect that the Pursuer suffered from a chronic depressive disorder and was emotionally dependent on the horses.  If she was required to give away or have the animals destroyed, her mental condition would deteriorate.  The Pursuer in this divorce action had retired from her employment in the finance industry on the grounds of ill-health with the prognosis that it was unlikely that she would return.

The Judge accepted that the Pursuers age, ill-health and lack of formal qualifications militated against her obtaining future employment.  With respect of Section 9 (1)(d), it was noted that the purpose of the provision was to “adjust to the loss of support on divorce rather than extend the matrimonial standard of living indefinitely.  The principle was not permitted to be extended to pay for the upkeep of animals.

With respect to the Pursuers claim under Section 9 (1)(e) it was held that her circumstances could not be described as financial hardship given the existence of other assets and even if there was such hardship this would be caused by the upkeep of the horses rather than the divorce itself.  

It must be remembered that the court a wide discretion when considering financial provision on divorce.  

Other legal systems have started to take a different approach towards pets and animals in recent years.  Judges in the US for example have heard expert witnesses regarding what is in the pet’s long-term interests akin to considering the welfare of a child in Scots Law.  Perhaps in the future the Scottish Legal System may follow suit but there are no signs at present of that happening.  

For further advice on making provision for family pets either by way of an agreement in advance, or on separation please, please do not hesitate to contact our team of experienced and pet loving (!) family lawyers.