Dogs on Separation: what are my options?
One of the key principles of achieving an amicable separation is to try, where possible, to separate out the emotional baggage which is part and parcel of building a life with another person. Often that is easier said than done. Increasingly, the family law world is learning to deal with people for whom pets form a core part of the discussions.
Going through the Court system always has drawbacks but when dealing with our pets, it can feel particularly antiquated. This article discusses how the Court deals with pets and what the options are for pet-owners who are separating. I deal here with dogs in particular but the principles could equally apply to other animals. (Although for some reason it doesn’t seem to come up nearly so often when cats are involved!)
So how does the Court deal with dogs?
It is often surprising for people to learn that the Court sees a dog in the same way as a piece of furniture or a painting. It’s a possession, a chattel. The Court is able to order the transfer of the dog from one party’s possession to the other’s. The Court is also able to order the sale of the dog and the division of the proceeds; though that would take a particularly hard-hearted judge (or perhaps a particularly valuable dog).
What the Court cannot do is make an order akin to the sort of arrangements it might make when dealing with children. It cannot order that one party will get the dog on Mondays and Wednesdays. It simply does not have the power to do so*. In this respect it is out of step with some of our international counterparts who have begun to make “shared care” orders.
How does the Court decide who gets it?
There is very, very little case law about the approach the Court will actually take in deciding who should keep the dog. The Courts generally have a very broad discretion in dealing with personal property and examples of the Courts dealing with dogs in particular are very scant. I am only aware of only two reported cases in which it has been substantively dealt with (and not in any detail).
The Court is likely to consider who could be said to ‘own’ the dog. In some cases that might be obvious – perhaps one party owned the dog before the relationship began. In other cases it will be less clear. Perhaps one party paid for the dog, but the other party fed it, took it to the vets and registered its microchip. Perhaps the parties mixed these responsibilities between them.
Ultimately the Court has the discretion to arrive at what it deems to be a “fair” outcome. There is no law which says that the Court should consider the welfare of the dog. Strictly speaking it is a cold calculation. That said, judges are humans and it is entirely possible that they will take the dog’s hypothetical preferences into account, even if not expressly.
What other options are there?
There is such a wide degree of unpredictability as to the potential outcome when going through the Court system that many are put off from taking this road. That is before we consider the costs of doing so.
Many separating couples find that they are able to reach an agreement amicably. If they are agreed that they will share the care (and costs) of a dog then that can be recorded in a consent order by way of mutual “promises” to the Court known as undertakings. That can be drawn up alongside a record of every other decision made in the settlement.
Some may find that they would benefit from the assistance of a third party who can offer a cheaper, less formal and more bespoke route than a Court process. Mediation can be a powerful tool to assist parties in understanding each other’s perspectives and reaching compromise.
If an agreement truly cannot be reached then you can consider asking a specialist arbitrator (akin to a private judge) to decide the issue. The arbitrator can be asked to deal solely with this one aspect and it can be done ‘on paper’, which avoids the need for parties to give oral evidence and can offer considerable costs savings. A solicitor can help guide you through which forum might be most effective in your particular circumstances.
Moving forward
It remains to be seen whether Parliament will amend the law to allow judges to take a more “modern” approach and to consider our animal’s best interests. In the meantime it is crucial that separating couples consider the various out-of-Court options that are available to them. We pride ourselves on our ability to guide clients through proceedings in a way which is proportionate and leaves people able to move forward amicably and swiftly if at all possible.
*It should be considered that in future the Court might be asked to consider that s17 of the Married Women’s Property Act 1882 provides jurisdiction for an order to be made regulating continued shared possession. At time of writing I am not aware of any precedent supporting such an approach which would be highly speculative.