How much is that doggy in the court room?

We have all heard the expression 'a pet is for life, not just for Christmas', but what happens when its owners decide to part ways?

A recent article by Deborah Rook, entitled "Who Gets Charlie? The Emergence of Pet Custody Disputes in Family Law: Adapting Theoretical Tools from Child Law’’, examines the way pets are treated during divorce proceedings in different jurisdictions. Where arrangements for an animal cannot be agreed between parties, the family courts in England and Wales are forced to apply pure property law principles and, in doing so, the animal’s feelings, emotions and well-being are disregarded. It is effectively treated as just another item on the list of the parties’ property and is given to the person who can best prove they are its legal owner.

Rook calls for a new approach within English law, stating that it must “fit within the existing property paradigm but nevertheless recognise the special nature of this living and sentient property”. One such way to do this, Rook suggests, would be to create a test not unlike the well-established 'best interests of the child test' that is applied to the equivalent argument in respect of children.

However, whilst using the ‘best interests of the child’ test as a “useful eyepiece through which to view pet custody”, Rook accepts that it would not be appropriate, or indeed proportionate, to go so far as to replicate the test in the case of pets.

As a lover of animals, I fully sympathise with those who face losing their pets at an already deeply distressing stage of their lives. I certainly cannot imagine having my own pets taken from me at such a time. Despite this, and donning my recently-acquired trainee solicitor hat, I find myself agreeing with the arguments that altering the test and encouraging litigation would be a waste of costs and time in a court system that is already fit-to-burst.

To date there is little in the way of case law on the subject from the English courts, and, perhaps unsurprisingly, it is the US that is most frequently cited as creating the biggest waves in the field. Judges there are showing a growing willingness to give increasing emphasis to what is in the best interests of the pet in question, including considering the separating couple’s respective lifestyles, suitable surroundings for the animal and whether it has attachments to particular individuals.

In Raymond v Lachman, for example, the New York appellate court allowed a cat to “remain where he has lived, prospered, loved and been loved for the past four years”. There have also been awards of shared custody, visitation and maintenance payments to owners, and there is even a market for specialist pet custody mediators.

Whilst arguing over the family pet may seem a little trivial and disproportionate in terms of costs, it is often seen by parties as a yardstick in financial proceedings, with disagreements over the family pet threatening to derail negotiations. Many people have very strong emotional ties to their pets and can seek to cling on to what they represent of their old life at a time of otherwise great instability and chaos. Despite this, it is highly unlikely the law will change any time soon. Application of a test comparable to the 'best interests of the child' test encourages costly litigation due to the unpredictability of the outcome.

The animal charity Blue Cross have recently devised a 'pet-nup' which aims to provide for what happens to a pet when a couple separates. Whether or not these agreements will be enforced by the courts remains to be seen. In the absence of a pet-nup, and perhaps in any event, with an already crowded court system I would suggest quarrelling pet-owners are best advised seeking alternative methods of dispute resolution, such as mediation or arbitration.

Posted by Emily Halley, trainee in the Family practice group.

Emily graduated from the University of Bristol in 2010 with a degree in Mathematics and Biology. She went on to study the GDL and the LPC at the College of Law in London (Bloomsbury), gaining a Distinction in both years.