Who keeps the pet in a divorce: How is custody decided… and what about maintenance?

Kirsten Tomlinson is a senior associate at law firm Brabners Personal.

As a family lawyer, I’m often called upon to navigate the complexities of relationships, tackling legal issues that affect every member of the family, from divorces to child arrangements and everything in between.

Considering a study last year found that just over half of pet-owning Britons view them as their child, it should be no surprise that I’ve had my fair share of experience working on disputes involving them too.

Pets are a huge part of our daily lives, so when a relationship breakdown could mean saying goodbye to our beloved animals, this naturally stirs up a great deal of anxiety and stress. So, it’s important to understand all the available options to handle this.

The purr-suit of justice

Whether a couple is married or not, they can instruct instruct separate and independent solicitors to help agree who takes ownership of a pet post-break up. 

In some circumstances, a couple could use one solicitor to help manage their separation together if they are amicable, however this is not prevalent.

A solicitor can provide legal advice, but ultimately, for unmarried couples there is no ‘canine court’ to determine who the animal lives with.

However, as disputes over pets become increasingly common, it raises the question of whether pet litigation might one day become a recognised legal process.

If a couple doesn’t plan on getting married and are just living together, they can go to a solicitor for a cohabitation agreement.

This will confirm what will happen if the couple separates in relation to shared finances but can also factor in arrangements for the pet.

If everyone knows where they stand, arrangements for who retains the animal post-breakup should be more amicable.

Ex couples can also seek mediation to settle pet custody agreements, as they would with children.

Who gets to keep the animal doesn’t simply come down to who paid for it or pays for their upkeep.

Principal care overrides this and so the main caregiver is the most important factor when deciding who they live with.

Despite this, pet ownership in the instance of a relationship breakdown is not handled like child custody, but instead as the transfer of property, since pets are considered personal property (chattels) by law.

Real babies and fur babies

If a couple has children as well as pets, the situation can become more nuanced.

In many cases, the parent who retains primary care of children is likely to get the pet too.

This is because animals are often seen as an integral part of a child’s life and separating them could have a detrimental impact on the children’s wellbeing.

However, if there is a shared care arrangement in relation to the children, where they spend equal amounts of time at each parent’s home, there have been cases where the pet dog has followed the children between the two homes on the same shared care basis.

Kirsten's own pet, Rudy, is pictured above: Cats, particularly outdoor ones, may find it unsettling to move between homes

Can you receive ‘pet maintenance'

When deciding who should keep the family pet, it’s important to consider the financial implications.

Unlike in the case of children, where the resident parent can apply for child maintenance from the non-resident parent, there is no ‘pet maintenance' that exists if there is a disparity in income and the person who retains the pet is the lower earner.

Only in a situation where pet parents are divorcing can you factor in the maintenance of the pet in an overall spousal maintenance calculation.

The expenses involved in caring for the pet can be listed in the monthly outgoings schedule.

However, for unmarried couples, there is no spousal maintenance or way of being able to force the non-resident pet parent to contribute financially towards the care of the pet.

Dogs, cats, horses… and parrots?

While dogs are the most common focus in such cases, they are not the only animals involved in disputes.

Arranging shared custody for a cat presents unique challenges. Cats, particularly outdoor ones, may find it unsettling to move between homes, making shared arrangements less practical compared to dogs.

Horses, however, would be a lot easier to handle – and would take away the awkwardness of having to have regular interaction with your ex, as they’re usually kept at a yard where time can be split equally.

‘While I haven’t handled cases involving other animals, there are of course different pets, such as birds, reptiles and fish. 

While all animals require varying levels of care, a parrot or tortoise for example having particularly long-life spans, the principles would remain the same. 

Principal care will always be considered the most important factor when deciding who they live with. 

Horses are usually kept at a yard, where time can be split equally between ex-partners

The rise of the ‘pet-nup'

For those planning on getting married, pet-nups are becoming more common. This is a standalone document that deals specifically with animals in the case of a divorce.

Typically starting from around £1,000, the agreement sets out not only who will own the pet following a divorce, but also arrangements for ongoing care, responsibilities and associated expenses.

It can also outline any contact arrangements, detailing if and how the pet will be shared between two homes.

Similarly to a prenup, a pet-nup is not 100 per cent legally binding. However, the document typically holds weight during divorce proceedings.

So, while it doesn’t provide a guaranteed solution, a pet-nup is currently the best protection pet parents can have.

Paws for thought

It’s essential to consider the issue of pet ownership well before any potential relationship breakdown.

Clear agreements and proactive planning can help ensure that the best interests of both the pet and the family are prioritised, reducing the number of challenges that are bound to arise in these already emotional experiences.