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Who keeps the dog in a divorce?

In the 1937 film The Awful Truth, Irene Dunne and Cary Grant are getting divorced and arguing over Mr Smith, their terrier. ‘Custody of the dog will depend on his own desires’ says the judge. ‘Send for the dog!’ Put in the middle of the courtroom, the dog eventually runs to Dunne – who has snuck a dog toy up her sleeve.

Who gets the dog (or cat, rabbit, etc.) on divorce is an issue I get asked about frequently by students and, in my past life as a divorce solicitor, by clients. A 2011 survey by the Co-operative Bank found that 20 percent of separating couples who had pets had sought legal advice about them.

For unmarried couples, the welfare of the pet and the love of the parties involved are not factored into the situation: it’s simply about who owns the pet. In England, pets are property – they’re chattels rather like the dining room table or – as we shall see below – a butter knife. Of course, ownership isn’t always easy to ascertain. People get pets through purchase, gift, adoption, inheritance – and sometimes the pet chooses them rather than the other way round. One person in a couple may pay for the pet food and vets’ fees while the other paid the breeder.

If the couple is married, the court has the power on divorce to transfer ownership of the pet to the other party as a type of property adjustment order. In fact, I once conducted a divorce case on which there was a clean break financial settlement on everything but who got the dogs. There are, however, no specific legal principles to guide court decisions on this issue apart from the general judicial obligation under the Matrimonial Causes Act to be fair. A number of academics have suggested ways in which principles relating to children could be applied to pets.

While we know about some celebrity pet disputes courtesy of the tabloids, there don’t seem to be any reported English or Welsh judgments we can analyse. Anecdotally, there seems to be some evidence that judges are seeking to find a way forward that gives both parties time with the pet, but it’s not clear whether this is based on a finding of joint ownership or whether judges are using principles that are similar to the way in which we decide where a child should live and when they should see the other person. What we do know is that such disputes can be extremely expensive. Reality TV contestants Alex Sibley and Melanie Hill reportedly spent £25,000 arguing over their rescue Staffordshire bull terrier and that is a drop in the ocean compared to some U.S. cases. Some couples have turned to drafting ‘pet nups’ – agreements about who gets the pet if the relationship breaks down.

There is now a body of case law from the United States and other countries giving principles on how to decide the issue. This not a universal trend, however. Despite the wife in one Canadian case alleging that her husband should not get the dog because he was ‘a cat person’, The Guardian reports that the judge declined to get involved. Dogs are different to children, he said, noting that:

In Canada, we tend not to purchase our children from breeders. In turn, we tend not to breed our children with other humans to ensure good bloodlines, nor do we charge for such services. … When our children act improperly, even seriously and violently so, we generally do not muzzle them or even put them to death for repeated transgressions.

Instead, he saw the dogs as no different to any other kind of chattel.

Am I to make an order that one party have interim possession of (for example) the family butter knives but, due to a deep attachment to both butter and those knives, order that the other party have limited access to those knives for 1.5 hours per week to butter his or her toast?” Justice Danyliuk wrote. “A somewhat ridiculous example, to be sure, but one that is raised in response to what I see as a somewhat ridiculous application.

Feature image credit: Dog pet cute by Staffordgreen0. CC0 via Pixabay.

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