Who gets the pet?
One of the regrets of my pre-COVID-19 life is that I did not adopt a cat before we entered lockdown – especially, when I see my colleague’s feline friends appear on our morning Teams meetings. I sometimes think that having a furry friend with me would improve my new #workingfromhome life.
It reminds me of a question issue many couples face when separating – who gets the family pet?
The general rule in Scotland is that a pet is the property of the registered owner of the animal. But practically this may not take you very far if the pet has not been registered (I am not aware of there being a goldfish register). So instead you might have to look at who bought the pet (and perhaps even using whose funds). That’s sometimes not easy either- a joint account was used, or, more often, no-one can remember (let alone prove) who handed over the money.
But ownership may not be the only issue- the person who has bonded with the animal, who has trained it, who cares for it and spent most time with it may not be the owner. You could ask the court for a transfer of ownership of the pet, but, in which case, be ready for the judge or sheriff to refuse to entertain the matter. Although we all know that pets are hugely important, you may find that he or she is unhappy about court time- as a publicly funded resource- being taken up with disagreements about pets and our experience is that the Police are similarly unenthusiastic about becoming involved, if there is an allegation of theft.
The law provides a default structure that kicks in when people can’t agree things themselves. It doesn’t always impose a helpful resolution- indeed, sometimes it doesn’t impose a resolution at all, and leaves people to have to try and sort things out themselves. That can be really hard. We always advise people to try and find an arrangement that works for them and their family, rather than throwing themselves on the mercy of the law, if they can- and that is especially so when you’re dealing with pets. As is often the case in family law, the best thing is to be ready to be creative and pragmatic- and to compromise.
So, what are our top tips if you are separating and have a much-loved pet?
- Tip number one: see if you can find agreement. Be practical. Some couples decide the pet should remain with whoever is keeping the house, or, if there are children, where they will spend most of their time. Or that the pet moves between their new homes. One of my colleagues had a case where the pet stayed in the former family home and the couple spent time there alternately, so that they each had time with the elderly pet who they knew would not adjust to moving.
If you think that finding agreement is going to be hard, think about mediating. Mediation can be really useful in situations like this where there is a discrete issue and where the law is going to be a blunt instrument and you need a more nuanced approach. - Tip number two: don’t forget to think about the costs of the care of the pet. These costs can be significant: Dog walking, pet insurance, grooming, kennels, cat-sitters, food, vet bills and so on. Who is going to pay them? Will one person be reimbursed for money spent by the other? These things need to be factored in when planning for life after separation.
- Tip number three: think about whether what you have agreed should be contractually documented. More and more often we are seeing separating couples make provision for the care of a pet in their Separation Agreement. Arrangements for sharing costs and contact arrangements can be included.
An advantage of having freedom to contract in Scotland (unlike the position in England and Wales) means that you can reach a bespoke arrangement which works for you on separation, which will continue to bind you if you go on to divorce. The financial elements of what you have agreed in relation to the costs of caring for the pet can be enforced, if the other person tries to renege.
Now you will have to excuse me, I have another video of the dog from my parents to share on WhatsApp.