Should pets be treated as children in divorce?

When a marriage breaks down, often one of the more contentious issues is what happens to the family pet. Currently under UK law pets are treated as personal property, with arrangements as to who they are to live with being agreed between the parties themselves or based upon who purchased or financially maintained the animal(s) in question. 

Currently the only ways in which to deal with issues relating to arrangements for pets are directly between the parties, through solicitor correspondence, mediation or possibly through the process of arbitration. The Court does not get involved or make determinations as to what happens to animals of the family, which can make things incredibly difficult and emotional for individuals, especially if the family pet ends up being used as a bargaining chip for the purposes of negotiations in relation to other aspects of the marriage breakdown.

In light of the difficulties surrounding this issue, on 1 January 2017, Alaska became the first US state to require courts to consider the well-being of pets. In Alaska, Judges are now permitted to determine ‘custody arrangements’ in relation to parties’ animals and to make final decisions as to who pets should live with.

On 1 January 2018, Illinois became the second US state to adopt such an approach, taking into account what would be in the best interest of the animal(s) before making a determination as to what the arrangements should be for its care. The Court will consider who cares for the animal and meets its day to day needs rather than simply who purchased it and is noted on any registration documents.

From experience, to some couples their animals are the centre of their world and being separated from them solely because they did not pay for them is heart breaking and the cause of untold devastation. I believe that many of my clients would welcome the approach of the courts in Alaska and Illinois, affording them the opportunity to seek ‘custody’ of their pets on the basis that they are better able to meet their needs. However, this must be balanced against the need to avoid a frenzy of protracted litigation dealing with such issues.

It remains to be seen whether the introduction of this new law will become more far reaching in the US and whether the UK will decide to follow suit and adopt a ‘welfare based’ approach when dealing with these undoubtedly emotive issues.

In most U.S. states, when a couple divorces, their pets are considered as objects, no different than furniture or automobiles. If there’s a dispute over who gets custody of the pets, the legal owner usually wins. The legal owner isn’t necessarily the person who takes care of the pet and has the strongest emotional attachment, but the person whose name is on the adoption certificate or sales contract.

Last year, Alaska became the first state to require courts to consider the well-being of pets and to allow judges to assign joint custody of these family members.

A year later, Illinois has enacted a similar law. Passed last August and in effect as of Jan. 1, SB1261.