Posted on 26.1.17 by Kerry Lees-Russell
Did you know, that during divorce in the UK, pets are given no more thought than a sofa or TV?
I read an article this week in which Lawmakers in Alaska have passed an amendment to the state’s divorce statutes that will give pets more consideration in divorce cases.
The legislation will give judges greater control in deciding who gets custody of the pet(s).
Alaska are the first state in America to pass such a measure, and will allow judges to assign pet custody agreements to divorcing couples.
The new legislation will also allow pets to be included in Domestic Violence protective orders.
Essentially the amendments mean that a pet’s welfare is to be recognised in a similar way to that of a child’s during the divorce process albeit one assumes not quite in the same degree.
Clearly in Alaska it is the Lawmakers intention for the Family Courts there to take into account the wellbeing of the animal when deciding who the pet will live with or whether joint custody would be more beneficial.
In the UK
When it comes to divorce in the UK, It often surprises many of clients when I inform them that in the eyes of the law, the family pet is regarded as a “chattel”, no different to a sofa or coffee table.
Many often fail to believe that in the event of a dispute, custody of the family pet will not necessarily be decided on who can offer the pet the most love, care and attention, but instead commonly boils down to who can demonstrate that they purchased the pet and who has paid for food, grooming and veterinarian costs.
As a “mother” to a 3 year old Mal-Shi, I think of my dog as my fur-baby, and I know that I am not alone in my feelings towards my beloved pet.
As family lawyer however, I do not accept that legislation should be changed to treat pets in a similar way to children.
Now don’t get me wrong, I am all in favour of the Alaskan approach that the ‘best interests of the pet’ ought to be a consideration, however, I think that changes to the legislation here may be a step too far.
Family court judges already have wide-ranging decision making powers and although some judges may simply consider just the ownership test, some judges may also consider the best interests of the pet too.
I would like to see Family Court judges not dismiss a ‘best interests’ test and to consider this in addition to the ownership test but I do not believe there should be an overhaul in the legislation in this area.
It is important in my view for the Judges to maintain their rights to exercise their judicial discretion which will then allow them to weigh up other relevant factors such as whether a pet should reside with a child who has a particularly strong bond with them or whether two co-dependent pets should be split or remain together.
How to avoid pet disputes
For those bringing a much loved pet into a marriage or civil partnership, I consider it a good idea to consider a Pre-nuptial agreement (or a “Pre-Pup”).
This is a formal agreement entered into by a couple in contemplation of a marriage or civil partnership which sets out the couple’s intentions as to who gets custody of the pet (amongst other assets) in the event that the marriage or partnership breaks down.
This will help avoid avoided what could be an emotional, lengthy and costly court process.
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