Expert Insights

Expert Insights

Who gets the pets upon divorce?

The Hong Kong government’s recent decision to cull 2,000 hamsters to prevent animal-to-human transmission of Covid-19 has caused heated discussions in the territory about animal rights and welfare. People are shocked about the government’s decision, a lot of them are pets’ owners themselves. This is especially so with an increasing number of people keeping pets at home during Covid time.

A lot of young couples nowadays have even decided not to have children but to keep pets and treat them as their children. It is therefore inevitable for these family pets to take centre stage upon divorce. The same kind of issues and disputes concerning children upon divorce will arise for their pets, such as who will live with the pets, who will take care of them and who will maintain them financially. There are also cases where pets were used as “pawns” in divorce and intentionally harmed by one party in order to emotionally blackmail the other party.

Pets are traditionally treated as property in the eyes of the court. They are no different to pieces of furniture, houses or cars. However, with the increased awareness of animals’ rights and welfare, this situation is slowly improving. For example, on 5 January 2022, a new law has come into effect in Spain which recognises pets as living and sentient beings instead of just a chattel. The family courts in Spain now have to consider the welfare of the animals as well as the family needs in deciding on who gets the pets upon divorce. A few other jurisdictions such as Portugal, France, Germany, and some states within the USA also have similar laws protecting the interests of the family pets upon divorce of their owners. This new piece of legislation has prevented parties using their pets as “bargaining chips” or “pawns” in divorce proceedings, and also recognises family pets as part of the family and the emotional attachment and bond between them and the family, especially for families with children.

Unfortunately, in Hong Kong, the courts still do not see family pets as having the same rights as children. They are still treated as chattels, i.e. properties forming part of the matrimonial assets. There is no separate rules or laws regulating how to treat pets upon divorce, nor do the courts have power to grant custody, care and control and access regarding pets, as what they can do regarding children. When asked to decide on where the family pets should go, the court would look at factual matters as they would to other chattels, including who is the registered owner, who purchased the pet and whether it was a gift to that party etc.. Sometimes the courts would also consider the attachment and bonding between the pets and children, but there is no guarantee as legally, they are still treated as properties instead of children in the eyes of the courts.

As such, pet parents should take responsibility to think ahead and try and reach an agreement as much as possible upon divorce. They should have the pets’ best interest in mind and see what arrangements suit their pets best, including who has been caring for them, who can afford maintaining them financially, the space available in their homes, and who has a stronger bonding with the pets etc.. They should also work out a “parenting agreement” for their pets upon divorce.

It is also wise to include terms regarding arrangements for their pets in pre-nuptial agreements before they even get married in order to avoid any conflicts arising regarding their pets in the unfortunate event of divorce. They can include terms like who will have “custody, care and control” of the pets that they are keeping or intending to have in the future, and the “access” arrangements to the pets, as well as how to share the expenses in the way they wish. If they have not already had a pre-nuptial agreement in place regarding their pets, and only started keeping family pets after they get married, they could consider entering into post-nuptial agreements setting out the intended arrangements for their pets upon divorce. Upon divorce, the couples should adopt such agreed arrangements into their final settlement agreement. This will save the parties from potentially having to fight this dispute out in court, and protect the interests and welfare of their beloved pets.

Although neither the pre-nuptial nor post-nuptial agreement is 100% legally binding and if the matter ends up in court, the court will consider all circumstances of the case and decide on whether it is fair and reasonable to uphold the agreement, the nuptial agreement will still be useful as a strong piece of evidence showing the parties’ intention regarding their pets.

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