Family Law expert, Gemma Purt looks at the growing popularity of Pet Nups and asks should pet owners consider putting one in place?
For many families and couples pets are an integral part of daily life. Unfortunately if a relationship breaks down, it is increasingly common for a dispute to arise about who gets to keep the pet. These disputes can be emotional and difficult to resolve.
Ant McPartlin and Lisa Armstrong hit the headlines last year over the fight for custody of their beloved dog, Hurley. The news that a judge had been required to rule joint custody of the chocolate labrador, because the owners could not agree between themselves, caught the public’s attention, as did pictures of Hurley in June enjoying a lavish seventh birthday ‘lockdown’ party, courtesy of Lisa Armstrong as the dog continues to divide his time equally between his new homes.
Although there are no official statistics on how many British couples are locked in pet custody litigation, lawyers say they are seeing more and more cases with some recent estimates earlier this year citing as much as a 30 per cent rise in two years.
A pet is classed as a ‘chattel’
We all know our pets have feelings, although unfortunately not in the eyes of the Law. Under the law in England and Wales pets are classed as a chattel i.e. a piece of personal property or thing that belongs to you. As such, pets are treated in a dispute as a material possession, such as a car or television, table or chair.
Resolving an argument over a pet
On the breakdown of a relationship you need to try and look at what is in the best interest of your pet. The first step is to try and negotiate directly with the other person. If this does not work you could choose to instruct a solicitor or try mediation to resolve the dispute. It is always best to try and resolve disputes amicably. If this is not possible, you could consider issuing court proceedings and a judge will decide.
Issuing court proceedings should be a last resort and is not necessarily the best way to proceed. You may end up spending considerable sums in legal costs. In addition, issuing court proceedings solely for pets is still very rare and it is more likely that the pet will be considered as part of an overall financial settlement in relation to the break up.
What will the courts consider?
The decision on who will keep the pet if the parties cannot agree is likely to be based on proof of ownership or evidence that one party was the main owner. Issues such as who bought the pet, who the pet is registered to, who pays the insurance for it and so on, will all be considered by the court.
Sharing a pet on divorce or relationship breakdown may not be practical and does not always work like the sharing of a child or children. The court takes into consideration ‘best interests’. For example does one party go out to work all day whilst the other stays or works at home? If there are children involved, the children’s best interest may also be factored in; Where do the children live primarily? Was the pet purchased for them?
What is a Pet Nup?
In England and Wales you can deal with who will keep the family pet on a relationship breakdown in a pre/post nuptial agreement which can be entered into prior to or after the marriage and can set out the plans for the pet in the event that the marriage does not work.
There is also a specific Pet Nup that you could enter into which sets out your agreement prior to the marriage and deals with what will happen to your pet in the event that the relationship breaks down. In fact, anyone buying a pet can enter into a Pet Nup – married couples, cohabiting couples, civil partners, family members and friends.
The Pet Nup addresses issues such as those outlined above which the court will consider - where the pet lives, who pays for the insurance, who pays the vets bills, who pays for the pets’ upkeep, who makes decisions in regard to medical treatment and of course, what happens to the pet should the relationship breakdown. The Pet Nup can also state provisions for if a relationship breaks down. For instance in the case of a dog, the non resident owner could still take the pet for a walk, and also look after it while the other owner is on holiday.
Animal charity Blue Cross launched the world's first pre-nuptial agreement for pets over six years ago in a bid to ease the pain of any potential split on both animal and owner and an example of this document can be seen here.
Is a Pet Nup legally binding?
The situation for a Pet Nup is similar to a prenuptial agreement. Although the law does not recognise such agreements currently, the courts are likely to uphold the terms of a Pet Nup if certain factors are in place:
- Obtain independent legal advice – It is strongly recommended that each party to the agreement obtains independent legal advice prior to signing. This helps to show that you both understood the implications of the agreement when entering into it.
- Both parties should intend that the agreement is final in governing what will happen to the pet.
- The agreement should be in the best interest of the pet
- Avoid allegations of duress or undue influence – The agreement must be entered into freely by both of you and there should be no evidence of duress or undue pressure before entering into the agreement.
- Ensure the agreement is realistic and fair – If the Pet Nup is weighted too far in favour of one person, there is less chance of it being upheld by the court on divorce.
Are Pet Nups a good idea?
On balance – yes. A Pet Nup is an instrument that seeks to avoid confusion, argument and wasting valuable time and money, and as such it is worth putting an agreement in place as a pre-emptive measure if you have a beloved pet that could become the subject of a dispute in the future.
For advice on this and other Family Law issues, contact a member of our Family Law team.