Pets and divorce: should you make a PetNup?

I had never really considered myself a dog person having been brought up with a series of cats during my childhood and continuing my feline ownership into adulthood. However, just over 6 years ago, I discovered just how fabulous dogs were when we got our first dog, a Cocker Spaniel. I was amazed at how quickly he became part of our family. 

Our children adored him and still do. He instinctively knows when we need comfort and support and the excitement and adoration he shows makes us feel like a million dollars.  More recently, we again decided to take the plunge and extend our family once again, this time with a young female Sprocker Spaniel who has so much energy, much to our delight and the consternation of our now mellowed, middle-aged Cocker.  

My family is far from alone in our love for furry beasts. The pandemic and resulting increase in home working provided an opportunity for many to welcome new pets to their family be they dogs, cats, rabbits, hamsters, spiders or the rather less hairy, lizards, snakes or goldfish. 

Pets4Homes reported that demand for puppies more than doubled in May 2020 in the peak of lockdown with the average price for puppies also increasing by a staggering 131%. 

I think it would be fair to say that for many people, pets find a special place in their owners' affections and their families. They are often treated more like children which is why, if a relationship breaks down, what happens to the family pets? It may be just as important and as emotive an issue to be addressed as the arrangements for the children and finances. 

How does English Law deal with pet ownership on divorce or separation?

The current situation, sadly, is that pets are considered to be Chattels much like a kettle or toaster. For those that are not married, any dispute would likely be resolved in favour of a person able to prove that they had paid for the animal and costs of ownership unless there was proof that the animal was purchased as a gift. 

Where a couple is divorcing, ownership of pets could be addressed as part of the financial arrangements where the court has a far greater discretion. This is certainly helpful in the case of a pet with ongoing healthcare needs and veterinary costs. These costs can be considered part of the reasonable needs when looking at a fair division of the capital and any maintenance provision. 

Ownership of the animal could also be addressed on the basis of needs of the parties or any children and/or contributions. Whilst the court is not directed to consider the welfare of the animal, I would hope that if a judge was to have determined such an issue, this would have some impact on any decision. 

One of the biggest issues that must be kept in mind is the cost and time involved. Litigation can be expensive and fraught, with delays resulting in costs that far outstrip the cost of the pet (or dare I say – a replacement) and last longer than the animal’s lifespan. It is always going to be far better to try to reach an agreement with regards to the arrangements for the animals. This can then be set out within a separation agreement or as part of a consent order. 

What is a PetNup?

A PetNup is a formal agreement that is entered into by a couple whilst they are together that sets out what should happen to their pets in the event of divorce or separation. It might cover issues such as shared care of the animal (perhaps alternating weeks), provision for holiday care and ongoing veterinary costs, insurance etc and which decisions, such as to health or welfare, for example, will have to be made jointly. 

Is a PetNup binding?

In the absence of any change in the law surrounding pet ownership, I would consider that for non married couples, a Pet Nup could be considered as binding and enforceable as a contract. Just as long as it was agreed in the absence of fraud, mistake or duress and there was an intention to be legally bound by the agreement. 

That said, there are likely to be some aspects of the agreement that may not be enforceable or cost-effective to enforce, but deciding these details early can still help reduce the conflict and emotional turmoil of separation. 

For married couples, the court retains a greater discretion as to how to address the financial issues (remember pets are considered “assets”) and so is not bound to follow any prior agreement. 

However, a PetNup entered into in the absence of fraud, mistake or duress and with the intention of being legally bound is still likely to be given significant weight. Also, if it is entered into as part of a wider prenuptial or postnuptial agreement (where both parties provide full financial disclosure and have legal advice) a court would be unlikely to depart from the terms of any agreement unless it would cause significant hardship. 

Anyone who would like more information about a PetNup or indeed any issues in relation to divorce or finances can call me for a free 15 min chat on 01206 217305 or email me at [email protected].