Paws for thought: The rise of pet-nups and pet disputes in family law

Simon Bruce, senior counsel, Farrer & Co, 04/01/2021

“The dog has seldom been successful in pulling human beings up to its level of sagacity, but human beings have frequently dragged the dog down to theirs”.

Author James Thurber wrote memorably about dogs and their closeness to humans. Dog owners will know exactly what he means.

In the UK, 44 percent of households own pets, and there are some 51 million pets - almost as many as people. According to research by the American Animal Hospital Association, 93 percent would risk their life for their pet, 86 percent include their pet in holiday celebrations, 67 percent take their pets on holiday, and 63 percent celebrate their pet’s birthday.

It’s obvious that many of our clients’ lives are touched by their pets. We’re even seeing more pet therapists, behaviourologists, spas, and vets popping up on local high streets.

The pandemic has devastated people’s lives. It has also driven a rise in pet ownership, and in the price of pets, as people spend more time at home and devote more time to their pets.

I purchased a yellow Labrador in March 2020, and just a few months later, the same breed was being marketed for almost four times the price: making pet theft a much more serious phenomenon.

The only legal book yet published on the subject is “Pet Law and Custody”, by Barbara J Gislason, which lists over 400 pet cases in its index. It is indeed an evolving subject for lawyers and advisors of wealthy pet owners alike.

It’s therefore no surprise to see the rich and famous featuring in such disputes. Examples include Ant McPartlin, of Ant and Dec, reported as disputing custody of a black Labrador with his ex-wife.

The subject merits advisors’ attention, not only because of the profusion of pets, but also because prevention is better than cure. Clients will thank you if you’re able to come up with ideas that could prevent future disputes over pets.

A pet is considered by English law as merely something that is owned by a person - the same law that relates to the ownership of objects. In standalone cases relating to pets, unlike with children, there is no best interests or welfare test.

Clients will naturally also think about the pet’s future care, and the extent to which provision can be made in a will, codicil or trust.

Look at the costs spent in pet cases, such as the cat Ozzy, whose owners were involved in litigation which cost the defendant £24,000. Such publicity is the last thing your clients want to get involved in.

What about the emotional cost of the pets themselves? Joking apart, everyone knows that cats and dogs react to atmospheres in a home, especially in a fractious environment.

Sometimes a dog ownership dispute can take centre stage in a divorce. For example, a recent £10 million divorce settlement was overshadowed by a dispute about dogs in England and France. The judge refused to get involved, saying that the dispute should be sent to a mediator who was an expert in this field.

So what’s the way forward in these cases?

First, advisors should be talking to clients about the ownership of pets being set out in cohabitation contracts, prenups and postnups.

These kinds of agreements will be enforceable if they are properly dealt with. Just as a prenup can set out who is going to own an expensive chandelier, it can also settle who is going to keep the dachshund, cat or koi carp collection.

Think ahead - especially if you’re a pet-lover.

A pet may be a present, perhaps for Christmas. Normally that pet will continue to be owned by the donee. However, in some reported American cases, the donor becomes closer to the pet than the recipient, using this as a basis for keeping the pet.

So while evidence of ownership is useful, it’s more practical to have a standalone agreement acknowledging that the pet is owned by one particular party, as amending and renegotiating pre-existing cohabitation contracts and prenups often leads to needless problems.

Specific agreements relating to pet ownership can be informal, but the more formal they are the better. Proportionality will determine whether lawyers get involved in drafting these.

What though if your clients seek your advice?

You will then be looking at the involvement of each party with a particular pet: who purchased it; who named it; who registered its purchase; who arranged the insurance; who takes it to the vet; who feeds it; who walks it etc. There are hundreds of interactions with pets that show which party has had most domestic and emotional involvement with a pet, and who therefore should keep it.

It’s therefore much better if a client has taken your advice and recorded ownership in formal documentation which will in practice bind a court.

As with divorces, in pet custody cases the advisors will be looking for all effective means to settle the dispute amicably. This will often lead to mediations by people who have expertise in this area, and other well-tried dispute resolution techniques such as arbitration, where there is no risk of publicity.

Although the end of the Brexit transitional period on 31st December makes enforcing prenups more complex vis-a-vis EU countries, astute advisors will tame clients’ tendencies to litigate. Letting sleeping dogs lie by dealing with these matters by agreement ahead of a dispute is a more apt way to peaceful resolution.

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