Last month, Spain announced that it would be updating their civil code to increase the protection of pets, categorising them as "living beings" in recognition of increasing support in Spain for animal rights. Whereas to date a pet had the legal status of an object and was to remain with whomever was its legal owner, judges now have an obligation to determine 'custody' arrangements for pets during divorce proceedings, as they do for children, considering the needs and welfare of the family pet.
So, how are these disputes settled in England and what are the rules?
In some jurisdictions, such as Alaska and California and now Spain, judges have the authority to decide who gets 'custody' of the family pet in divorce cases. But in England and Wales the law is not as straightforward.
When it comes to the family pets, the position of the law in England and Wales is that they should be regarded as matrimonial 'chattels'. This means that a beloved family pet is effectively treated in the same way as a piece of artwork, the family car or other possessions, to be divided between the two parties, hopefully by agreement. We are seeing increasing numbers of couples looking to set out in writing the arrangements for caring for their pet.
Unlike when dealing with arrangements for children, the welfare of the animal is not of relevance to the decisions made by the Court during a divorce. This seems at odds with the fact that animals do have rights under the Animal Welfare Act 2006, which imposes a positive duty on persons responsible for a pet to meet the animal's welfare needs. It may therefore be suitable for couples to take precaution and consider the wellbeing of their pet early on in their relationship, when the conversation is amicable rather than dealing with it upon divorce or separation when it may be a much more contentious dialogue.
These ownership arrangements can be detailed within a prenuptial agreement or more deliberately by a 'pet nuptial' agreement, which can set out where the family pet will live in the unfortunate event that there is a relationship breakdown. It can also set out the financial contribution to be made by each party towards the cost of veterinary bills, food and so on.
Whilst 'Pet nups' are not legally binding in England and Wales, a judge is likely to follow an agreement that has been properly and freely entered into and they provide a useful reference point as to the parties' intentions when it comes to pets. Having arrangements set out in writing can focus the parties' minds and avoid disputes later in time.
A family pet will often be a source of constant comfort during a relationship breakdown, a time of heightened emotion and insecurity and significant change. The emotional attachment to a pet can be huge, so having a discussion about pet arrangements early on and considering a 'pet-nup' agreement is a sensible way to try to avoid undue distress for the couple and their furry friend further down the line.