When a relationship fails, deciding who gets the deeply loved family dog or cat can turn into a real fur fight. Pets are more than just animals to most families so figuring out who keeps them can be a highly emotional and contentious issue during a separation.

The (appropriately named) recent case of FI v DO [2024] EWFC 385 may signal a shift in how pets are treated in divorce. This case involved a golden retriever puppy. The wife argued that she and the children were the primary caregivers; the husband claimed financial contribution and plans to breed the dog. Departing from the traditional view of pets as chattels (similar to possessions like cars or jewellery), the court considered the dog's wellbeing and ordered that it remain with the wife. This decision hints at a potential move towards recognising “pet custody” in England and Wales, as happens in other jurisdictions.

For instance, in British Columbia in Canada, changes to the Family Law Act in 2024 now recognise pets as family members rather than possessions. The focus there is on who has provided care for the animal and the relationship between the pet and family members. This new legislation encourages private pet “custody” agreements.

In one recent case in our team, an agreement was reached within the divorce for a lump sum to be paid to the spouse keeping the pet, to help contribute to all of its future costs. Calculations were done to help quantify the lump sum by reference to the cost of food, insurance and vet’s bills over the course of the pet’s expected life span.

In England and Wales, pre-nuptial agreements are increasingly common to predetermine the distribution of assets and responsibilities in the event of a divorce. Traditionally, these agreements cover financial assets, property, and debts. However, they could also include provision for pet care, ensuring pets are not overlooked during separation. 

Although a relatively new concept, it is also possible to have a standalone agreement dealing solely with pets (“a pet-nup”). These could help avoid disputes by clearly defining who will take responsibility for the pet, considering factors such as who the primary caregiver is and the pet's best interests. A pet-nup could provide valuable clarity and help to influence a court’s decision, hopefully minimising potential future conflict.

If you want to discuss how a pet-nup might protect your beloved pet, do contact a member of the family team.