Pet Ownership and Family Breakdown: Transatlantic Treatment of Pets on Divorce

More than half the adult population of the UK now own a pet, with the share of UK households reportedly owning dogs increasing from 23% to 34 % between 2019/20 and 2021/22 (most likely due to Covid lockdown restrictions). One of the consequences of increased pet ownership, has been an increased number of disputes about who keeps the pet in the event of family breakdown? This has included high profile celebrity disputes – Amber Heard retained pet dogs ‘Pistol’ and ‘Boo’ on her divorce from Johnny Depp in 2017, and Ant Macpartlin and Lisa Armstrong divorced in 2018, continuing to share care of labrador ‘Hurley’, although media reports suggest it remains a contentious issue between them.  Importantly, this also represents a broader societal shift where pets are increasingly viewed as family members, akin to children, and is an area of law where the UK appears to be lagging behind the US in its development.   

Pet ownership in New York has surged, particularly post-pandemic, and in New York City alone, there are reported to be approximately 1.1 million pets, equating to about one pet in every three homes. In 2021, New York enacted legislation to guide courts on pet custody during separations, distinguishing between married couples and those in unmarried relationships.  Historically, New York law treated pets as property in divorce matters, but the introduction of Senate Bill S4248 requires courts to consider the "best interest" of the pet when awarding possession. This involves evaluating factors such as the pet's well-being, the relationship between the pet and each owner, and who has been primarily responsible for the pet's care. While pets are not treated exactly like children in custody disputes, a hybrid approach considers what is “best for all concerned.”

In California, the approach to pet custody in divorce cases evolved significantly with the introduction of Assembly Bill 2274, effective from 1 January 2019. Previously, pets were treated as personal property, akin to furniture, and were subject to division in property negotiations during a divorce. However, the 2019 law enables courts to consider the pet's best interests and welfare when determining custody. Judges can evaluate factors such as who adopted the pet, who spends more time with it, and who provides for its daily needs, similar to child custody considerations. Temporary orders can be issued to maintain stability for the pet during the divorce process, and judges may award sole or joint custody based on who has historically cared for the pet and who is best positioned to do so in the future. Spouses must demonstrate their suitability for sole custody or collaborate on a shared custody schedule, emphasising the importance of the pet's well-being.

In England and Wales, pets are legally classified as "chattels" under the Matrimonial Causes Act 1973 and the Civil Partnership Act 2004, meaning they are treated as personal property during divorce proceedings. This classification often fails to capture the emotional bonds between pets and their owners. Traditionally, courts have generally awarded pet ownership to the person who purchased the pet or holds the registration documents, unless the pet was gifted.  Several cases illustrate the evolving approach to pet ownership. In K v K (Financial Relief: Management of Difficult Cases) [2005] 2 FLR 1137, the court emphasised the need for clear division of chattels, including pets, before trial. In S v S [2008] EWHC 519 (Fam), the court acknowledged the wife's strong emotional bond with her horses which formed part of her financial settlement. In RK v RK [2011] EWHC 3910 (Fam), the court refrained from making an order about a dog, noting it had been primarily cared for by the husband. More recently, in IX v IY [2018] EWHC 3053 (Fam), the court recommended mediation for resolving pet disputes, recognising the emotional significance of pets in family dynamics.  The recent case of FI v DO [2024] EWFC 384 is indicative of a shift towards considering the welfare and treatment of pets in future ownership decisions.  The court prioritised the pet's welfare and past treatment over strict legal ownership, awarding ownership of the family dog to the wife due to the husband's harmful behaviour towards the dog and to enable the dog to remain at the family home with the wife, which the dog considered to be “a safe place and where he belonged”.  The Judge also remarked that the wife “was someone who had the welfare of the dog at heart”.  

To address pet ownership proactively in the event of separation and divorce in the UK, parties can utilise Pet-nuptial agreements ('PetNups'), which outline residence arrangements, financial responsibilities, and contact arrangements for pets in the event of a relationship breakdown. These agreements can include clauses that encourage Non-Court Dispute Resolution such as mediation or private arbitration.  For further detail see Jesse Davis and Matthew Clark’s post "Has anyone seen my cat?" - Pet-Nups and Pet Disputes between Unmarried Couples and for the approach of the Court in Hong Kong, Lisa’s Wong’s post Who gets the pets upon divorce?