An interesting question continues to arise from divorcing couples in the UK – what happens to the family pet when the parties split up? Sometimes it is only one person who cares for the pet on a day-to-day basis, or it may be the case that a pet was bought specifically for the children of a marriage and it can be agreed that the pet will stay with the children. However, in a number of cases both parties may want to keep ownership of their beloved pet, which can cause disagreements even when financial arrangements have been agreed or damage those discussions.
As a nation of animal lovers, we often see our pets as family members and what happens to pets on divorce is a common worry. In England and Wales, however, the court can only follow the law which treats pets as items of property like any other property of the married couple such as cars and furniture. If the court had to decide it wouldn’t be an matter of who would make the better “parent”, but more a matter of who has the better claim to ownership, for example by buying the pet, or receiving a gift of it.
So, if an agreement cannot be made prior to a breakdown of a marriage, through a Prenuptial Agreement, Postnuptial Agreement or simply by agreement of the parties, as with any non-living assets in a divorce, ownership will ultimately be decided by the court.
Most parties would not want a court to decide the fate of their pet and instead it is advised that the parties consider drafting a ‘Pet-Nuptial Agreement’ prior to the marriage setting out the future of the pet should the worst happen.
A Pet-nuptial Agreement can stand on its own or be part of a wider Prenuptial Agreement, seen as a reflection of the parties’ intentions regarding ownership of property and assets prior to marriage. Under English law, such Agreements are not currently legally binding, but they will be taken into consideration by the court in the event of a relationship breakdown.
Following on from a landmark case, known as Radmacher -v- Granatino, the significance of a prenuptial agreement is part of “all the circumstances of the case”. Crucially, the Court stated that it should give effect to a prenuptial agreement if it is:
- freely entered into by both parties;
- they each have a full appreciation of its implications;
- in the circumstances prevailing it would be fair to hold the parties to the agreement.
It is suggested that a primary carer of the animal is provided outlining who this will be and what the duty of care will entail, such as who will pay for vet bills and insurance, the day-to-day living expenses of the pet and arrangements during times when the primary career may be on holiday or unable to look after the pet.
So for those of you with a love for pets and soon to be tying the knot, you may want to protect your little creatures and what happens to them in the event of a break-up!
If you would like any advice or assistance in relation to the drafting of a Prenuptial Agreement or your rights upon separation and/or divorce, please call Ronald Fletcher Baker’s family team on 0207 613 1402 or e-mail Adam Bowes.