In the eyes of the law, our beloved four legged (or sometimes no footed or many footed!) friends are moveable property – the same as a car or indeed, a sofa!
If you separate, and can’t agree who gets to keep the pet, then ultimately, a court will need to decide. Once the court is involved, then usually the animal will need to be valued, as the court ultimately is concerned with fairly dividing the matrimonial assets. This can be divisive, as what a two year old Miniature Schnauzer might be worth if he were to be sold to a third party is one thing, but that he is worth to his owners, well that is entirely another matter!
It is largely accepted that it is incompetent to seek an interim order for delivery of an animal, as this would be the equivalent to asking the court to make an interim order in relation to an item of matrimonial property – which is a no go. The court should not make any orders in relation to who should receive what, in terms of assets, until a civil trial (known in Scotland as a Proof) has taken place.
I say largely accepted, as that has not stopped people, on occasion, attempting to find a loop hole. Recently, we have seen attempts to ask the court to treat animals as if they were children, but such attempts have been unsuccessful. Accordingly, in the absence of intervention of an animal welfare organisation, until the court makes an order, or otherwise an agreement is reached, the pet will stay where they are, with whoever they are with.
How can the argument be avoided? It is possible to formalise in a legally binding agreement who would keep if it you separated. Some people refer to these agreements as “pet-nups”, and they are effectively just nuptial or cohabitation agreements (we’ve blogged on this before!), which can be entered into at any time during your relationship.
If you’d like to know more, a member of our team would be happy to discuss., please contact:
You can also visit our Family Law Team page by clicking here.