Rex Judicata

The MuttA 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.

9 thoughts on “Rex Judicata

  1. Excellent. I’ve been trying to summon the energy to do a post on dividing the pets on divorce, but you’ve saved me the task (and done a far better job than I would have done). Love the post title too…

  2. Purrrfect! Shouldn’t the views of the animals be a consideration in deciding residency and contact though? We had two red setters, one each, and mine wouldn’t go anywhere without me and my ex-husband’s wouldn’t go anywhere without the other so I was stuck with both dogs. Certainly grounds to argue for a larger share of assets IMHO.

  3. My aunt and uncle had a sign in their kitchen ” We only stay together because of the dog”. They meant it and the dog was very happy.

  4. Surely under the Animal Act 1989 the interests of the dog are paramount

  5. yes and breeders would have to obtain care orders before removing puppies from their birth parents and placing them with human adopters 😉

  6. Hi everyone, can I run this by you for some advice? If this is the wrong place to ask then please ignore my question.

    I broke my back in January 2007 and suffered with chronic pain, stress and depression for 8 months, was off work and generally unable to cope with life whilst waiting for treatment on the NHS. In August 2007 I asked my neighbour if I could start walking her dog.

    This dog (Ellie, a collie- lurcher, 6 months old) had recently been passed to my neighbour by her father who lived on a narrowboat and found the dog was growing too big. My neighbour, a single mum with a son of about 3 years rarely walked the dog and had it tied up in the back garden for most of the day.

    Over the next 7 months I walked Ellie on a daily basis in all weathers, all through winter, taking her for long walks across fields where she got a real taste of freedom. We bonded emotionally and the physical exercise calmed Ellie down and gradually I began to recover and became pain free to an extent where I could return to work again. I built Ellie a super dog kennel, brought her fresh bones, washed and cleaned her if she got dirty on the fields.

    My neighbour decided to get rid of Ellie at one point because of her difficult behaviour, I was quite distraught
    to here this and decided to take her in myself. A couple of days later she asked for Ellie back and I foolishly agreed as the previous arrangement of walking Ellie was fine with me. We agreed that I could still take her for walks as it was good for my back, if I stopped the walking the pain quickly returned.

    I taught Ellie many things, we went on trips out. None of this I did for money, but because it was good for me physically, mentally and good for Ellie too. She was my perfect companion dog and fitted into my outdoor lifestyle perfectly. In the last couple of months I even took her to dog training classes until my neighbour gradually stopped answering the door. She wrote me a letter explaining that Ellie thinks I’m her owner, that she chews her toys up if she doesn’t see me and that she wanted to do everything herself now.

    I haven’t been able to walk Ellie for about 6 weeks now. It really breaks my heart to see her over the fence everyday and not be able to interact with her.

    I phoned the RSPCA to ask for some advice because I’m worried about her not being exercised and they said to monitor the situation for a few weeks which I have done. She doesn’t get a daily walk, stimulation, socialization, lessons or quality time like she used to with me, my neighbour doesn’t understand this breed is athletic. She is tied up – or in the house.

    Can I apply for custody on health grounds – for me and on welfare grounds for the dog? I have made a massive investment in Ellie as she became my motivation and has kept me well. Since not walking her I have found it physically and emotionally more difficult to cope. I would just be happy to have access, but I believe the courts can’t grant access to a dog. Can anyone help with advice? Do I have any hope?

  7. @Elizabeth.
    Because of professional conduct rules I can’t offer specific legal advice through this blog. In any event, I’m not sure what more I could usefully say except to refer you to the blog post you have commented on, which probably answers most of the questions you have posed: in essence a dog is really no more than a piece of property as far as the law is concerned.

  8. We work for the rights of responsible pet owners to live a normal life in Australia.

    In regards to renting, there are commonly used tenancy agreements that claim to be in accordance with tenancy law and regulation. From my research, I can’t ever see this premise being tested.

    These default tenancy agreements state that an animal or bird can not be kept at the premises UNLESS PERMISSION IS OBTAINED (this is the rented premises that the law gives the renter full right of access to providing they pay rent and behave).

    Dogs are chattel – full stop. Not only are they chattel, they are LEGAL chattel if registered per applicable law where you reside.

    SO HOW CAN A RENTAL AGREEMENT MAKE YOU ASK PERMISSION TO HAVE A DOG – OR, THE LEGAL EQUIVALENT, A PINK HANDBAG AT YOUR HOME?

    • Well I’m no property lawyer and no nothing of Australian law, but a tenancy as I understand is no more than a contract or licence, albeit often regulated by statute. It does not give an absolute right to property but a right to use or occupy it on terms which are agreed between the parties. I don’t see a difference between a term not to cause damage to the property or a term not to have a dog in the property – its a matter for the parties to agree between themselves. if a landlord wants to protect against the risk of damage by pets he’s entitled to do so, after all most insurance policies won’t cover either landlord or tenant for pet damage (as I know to my cost!). So as a pet owner it’s a pain, but I should think it’s perfectly permissible in law. Pink handbags however may be the subject of criminal sanction…

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