A reader of this blog has queried what the legal position is in relation to ‘custody’ of the dog when couples split. So before I pop out to walk my own special pooch here’s a few thoughts:

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At first it might sound stupid to be fighting over a dog like it is a child. Indeed, objectively speaking it is also stupid to be fighting over a child – if only the parents could see where the child’s best interests lay and follow those there would be no dispute. Of course, it’s not that straightforward either with kids or dogs. And as any family lawyer will tell you where couples have split decision making is often based on emotion rather than cold objectivity or commonsense.

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As a dog owner I also know how important a dog can be to a person, indeed to a relationship. My husband and I have an agreement that if we split I get the house and he gets the dog. Although this is a running joke (which he tells alongside the one about being married to a divorce lawyer) there is a grain of seriousness in it. For the next couple of weeks at least (until our human child is born) Zach the wolfhound is our 10 1/2 stone baby and either of us would be heartbroken to lose him. And lets face it a dog is a non-judgmental companion in times of loneliness who rather than wanting to take us for every penny wants nothing more than to take us for a walk.

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That said, there have been various articles in the press lately about celebrity divorce disputes involving the custody of a dog. Most of them hail from the USA (why am I not surprised?) and therefore are not a reliable guide to the legal position here (see for example Family Lore or Kathy Gleeson’s blog). Hence ‘calling competitions’ or the involvement of veterinary or other animal experts to consider the welfare of the dog or the strength of its bond to one or other owner are unlikely to arise in this jurisdiction. It seems as if in some US States there is animal welfare law which dictates that the decision must be based upon the dog’s best interests, rather like the Children Act 1989 operates in this jursidiction! And in other areas of the US vets or animal experts are called upon to adjudicate over some kind of quasi-arbitration.

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There are however some reports of litigation over here, albeit largely confined to the celebrity (mainly ‘celebrities’ who I have never heard of!). See for example these articles in the Daily Mail , The Telegraph and Digital Spy. However, its obviously gathering pace as even Direct Line Insurance have decided to get in on the act, although quite what they will offer by way of insurance to protect against the costs of litigating over canine custody remains to be seen (particularly since any such litigation may be between co-policy holders).

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The basic position in England & Wales is this: A dog is not a child, it is a chattel (something you own). If required to a court can make a decision about ownership but even though you may view your dog as just another member of the family there is no power to make a contact or residence order in the same way you would a child and no requirement for the court to consider the animal’s welfare.

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If you are married and divorcing the court can in the course of ancillary relief proceedings (the bit of a divorce where the property is sorted out) decide on the fair split of chattels such as home contents. At the same time the court can also make a decision about the dog as he is just another chattel – but frankly the court is just as unlikely to want to intervene in relation to a mutt as it is in relation to who gets the knackered sofa or the vase you inherited from your gran. In divorce proceedings the court will look at ‘all the circumstances’ when deciding who to ‘award’ the dog to, and it won’t necessarily be as straightforward as who is the legal ‘owner’ of the dog. Indeed arguments about who owns the dog are likely to be pretty sterile in this arena. However we all know that the division of assets through ancillary relief is emotional stuff and in the same way that one party will buy out an heirloom or prized possession of sentimental value for far more than it is worth on paper, arguments over the dog are likely to be used as a bargaining chips for the more hard nosed exes.

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If you are not married (or civil partners) but have been co-habiting and are separating you will have to start a county court action, probably a small claim. The court will simply treat this like any other claim for recovery of a chattel and will consider the question of ownership. If ownership can be established one way or the other the owner will obtain an order for recovery of the dog. If it can’t or if the court finds the ownership to be joint there may be an order which splits the dog’s time between you as co-owners.

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For those going down the small claims route the costs of pursuing legal remedies are likely to be comparatively small since costs in small claims are capped to protect litigants. However, if you are enmeshed in litigation through ancillary relief the costs of your divorce may be disproportionately affected by asking the court (and the lawyers who are more likely to be involved) to deal with this matter. Costs orders in ancillary relief are not capped, but are generally less likely to be made. However if the costs of an ancillary relief case or its preparation have been significantly increased by a doggy issue or settlement has been prevented because you have been (forgive the pun) like a dog with a bone on this one issue – there may be a costs risk. By all means use the dog as an incentive towards settlement, but don’t let the dog become the only issue you are litigating.

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On the whole I would expect Judges to be wholly unimpressed by couples who are dog-fighting over the dog. I’m sure that some Judges will simply be unpersuaded that its worth their time to carefully scrutinise kennel club registration documents and veterinary bills to try and divine the true ownership of mutley, and there may be more than a little pot luck involved in the outcome of such cases. The figures cited in The Telegraph article I’ve referred to above suggest that whilst such decisions are becoming more common there may not be a great deal of principle to them, and the easy way out is what is described there as ‘joint custody’.

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If you are in a relationship and thinking of enhancing your family unit with the addition of a dog you might want to think about drawing up an agreement about what will happen to the dog if you split, or at least recording who is the ‘owner’ of the dog. If you are cohabiting and drawing up a document about your ownership of a home together, or are getting married and drawing up a pre-nup this is the kind of thing you might sensible include in that larger document.

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My own parting thought is this: wolfhounds are extremely expensive dogs to keep (so we have discovered) – when I hypothetically divorce my other half will he have a larger claim for maintenance if he keeps the dog and will his housing need be altered by the fact that he needs a large garden?

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See also divorcedogs and doglaw for more information and guidance.