Who Gets the Dog? Acland Bryant - 5th May 2021 - St. Mary's Chambers

Who Gets the Dog?

                          Acland Bryant

                            5th May 2021

@stmarysflc
www.stmarysflc.co.uk      Family Law Specialists

St Mary’s Chambers | Family Law Specialists

Acland Bryant (called in 2019) has a busy practice which encompasses all areas of family law. Acland joined St.
Mary’s Chambers in February 2020 to undertake a specialist family law pupillage covering all aspects of Public Law
Children, Private Law Children, Family Law Act, Contested Divorces and Matrimonial Finance proceedings. Acland
became a tenant at St Mary’s Chambers on successful completion of his pupillage in February 2021.

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Introduction

What should happen to the family pet upon divorce? This is becoming an increasingly prominent question within
divorce proceedings and one which is often hotly and robustly contested between former spouses. 1 The Law
Society figures suggest that approximately one quarter of divorces involve a dispute over the family pet.

There have been a number of “celebrity” cases which have brought this issue to the attention of the media. These
cases include Ant McPartlin and Lisa Armstrong’s contest over the custody of their Labrador Hurley, and Johnny
Depp and Amber Heard’s contest over custody of their dogs, Pistol and Boo. However, to think of this as an issue
which only effects the rich and famous is wrong. Pets are commonplace in UK households and often likened to
human members of the family.

The English Law Position

Under English law, pets are considered chattels. In other words, pets are considered property akin to cars, jewellery
and furniture. As such, purchase and registration are often considered to weigh heavily in the determination of any
dispute regarding who should keep the family pet. That is not to say that those are the only considerations. Other
factors which are often referenced as being relevant include:

a.        Who is the pet’s primary carer?
b.        Who has contributed financially to the pet’s food and veterinary bills and how much each partner has
          contributed?
c.        Whether there is a pre-nup, often termed a ‘pet-nup’, in place. If so what are the terms of the pet-nup?
d.        What are the parties respective financial positions?
e.        Will provision need to be ascribed to a pet, for example a racehorse(s)2

When considering financial settlement upon divorce, the court must consider the S.25 factors applied to the
specific facts of the case. Looking at the facts of the case, it is conceivable that there may be specific facts that lead
the court to deciding with whom the pet should live. For example:

a.        If one of the parties is blind and the dog serves as a guide dog to the blind party; or
b.        If one of the parties have mental health issues and the dog was acquired as a mental health assistance dog.

The court may be inclined to find that the age and health of a party requires them to have the pet.

Consequently, it is important that practitioners consider the S.25 factors carefully against the factual matrix of the
case.
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1
    RK v RK [2011] EWHC 3910 (Fam)
2
    S v S [2008] EWHC 519 (Fam)

@stmarysflc
www.stmarysflc.co.uk

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St Mary’s Chambers | Family Law Specialists

An Alternative Approach

The international position has started to change in some jurisdictions. In 2017, Alaska enacted a law which requires
the courts to consider the well-being of the animal when considering which party the pet should live with.3 The
amended Alsaka divorce law now reads:

             “In a judgment in an action for divorce … or at any time after the judgment, the court may provide … if an
             animal is owned, for the ownership or joint ownership of the animal, considering the well-being of the
             animal.”

Furthermore, in Alaska, the courts have ruled that the welfare of the family pet (a dog in this case) would be a
crucial consideration when determining which party should keep it. Judges have now been given the power to
order “joint custody” as the court may do with children.

Similarly, developments in the US suggest that it is becoming increasingly acceptable and commonplace practice to
consider the best interests and wellbeing of animals and their relationship with their respective owners when
deciding where the pet should live. However, unlike Alaska, this is not specifically codified in legislation and is
instead a matter which falls within the discretion of the Judge.

Some domestic abuse organisations have welcomed the welfare style approach. According to the National Coalition
Against Domestic Violence (in Alaska), between 25 and 40 percent of domestic violence victims choose not to leave
a dangerous situation out of fear for their pets.4

The Alaskan media has widely welcomed the changes to the law requiring the courts to consider the animal’s
welfare. Some are advocating for the UK to take such an approach, aligning the legal protection of pets under
animal welfare laws with that of family law.

Whilst the welfare based approach may be the method of resolving disputes concerning pets living arrangements
preferred by some, this is not reflective of the current UK position. Consequently, practitioners in this jurisdiction
should focus their attention on the matters listed above under the heading “The English Law Position”. When doing
so, there are a number of practical issues that also ought to be considered, including those outlined below.

How to Approach the Issue Practically

In the first instance, it is advisable to consider a pet-nup. A pre-nup/pet-nup is something which is specifically
encouraged by the Law Society. Taking such an approach would help to determine the issue via agreement before
any breakdown in the relationship and avoid any heartache caused through litigating the issue. Additionally, this
approach may help to save costs in divorce proceedings.

If there is no pet-nup in place, the parties should consider whether mediation is an appropriate forum to consider
the issue. In some cases, mediation can provide a lower cost alternative to court proceedings and assist parties in
reaching a workable agreement.

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3
    House Bill no 147
4
    DV-FactSheetNCADV-AHA.pdf (nationallinkcoalition.org)

@stmarysflc
www.stmarysflc.co.uk

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St Mary’s Chambers | Family Law Specialists

One approach some are taking in mediation or during negotiations is to treat pets akin to children by devising what
could be described as a pet contact arrangement. Such an approach is considered by some as being constructive.
However, it is also important to recognise that this approach will require the parties to have an ongoing
relationship. Furthermore, should such an arrangement breakdown post proceeding, this may lead to further
difficulties (both practical and financial) in resolving the issue.

Should mediation fail to resolve the issue or not be deemed appropriate in the case, the ownership and living
arrangements for the pet may be considered as part of the overall financial settlement on divorce. This would
involve including the pet within the Scott Schedule with accompanying reasons as to why the pet is sought by each
party. This approach is not taken as a matter of course and appears, in practice, to be the exception rather than the
rule.

In taking the Scott Schedule approach, the parties are likely to be questioned and tested by the judge on the
proportionality of litigating the ownership of the pet. Costs are a significant issue within divorce proceedings. The
parties and the court will need to have regard to the overriding objective, which provides that dealing with cases
justly includes allotting to it an appropriate share of the court’s resources, while taking into account the need to
allot resources to other cases.

No court considering who the pet should live with, will consider contact arrangements. The extent of the courts
power lies in resolving issues of property entitlement. Thus, if a party does seek a shared care style arrangement,
they should seek to negotiate and resolve that issue outside of the court arena.

@stmarysflc
www.stmarysflc.co.uk

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Contact Us

                                Acland Bryant
                                E: acland.bryant@stmarysflc.co.uk

St Mary’s Family Law Chambers

26-28 High Pavement, The Lace Market, Nottingham NG1 1HN
Tel: 0115 950 3503 DX: 10036 Nottingham
Email: clerks@stmarysflc.co.uk

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