Doggy in the middle
In the past few years there has been an increase in “dog custody” battles in England & Wales. There is a theory that celebrities are driving the trend and other divorcing couples are now following suit.
In a divorce situation, ownership of the family dog is usually considered at the same time as the other matrimonial chattels are decided. Many couples come to a mutually acceptable agreement to share the dog. However, some divorcing couples consider their pet to be just like their child and some are not able or willing to come to an agreement about which of them should keep the family pet following divorce.
Strictly speaking, in law, a dog is regarded as a ‘chattel’. In the event of a dispute as to who should have custody, the Court would consider who is the dog’s owner. The Court will look at who bought the dog and who actually looks after it. The Court may decide that the dog is jointly owned and if the couple cannot agree between themselves who should have it, the judge may order that the dog be sold and the proceeds shared. One other possible outcome is for the Court to order shared ownership – so the dog’s time is split between two homes. The court does not have power to order “contact” for the spouse with whom the dog does not live.
Some commentators have asked whether the English courts should go down the route adopted by some American courts. In some States the dog is called into court and awarded to whoever it goes to. Surely there is a very easy way of cheating… the lure of choccy drops or a nice bone is bound to be too much for the poor hooch!
A recent article “Who Gets Charlie? The Emergence of Pet Custody Disputes in Family Law: Adapting Theoretical Tools from Child Law”, by Deborah Rook, Principal Lecturer at Northumbria University, states that “there are reported cases in the USA and Israel which show that two distinct tests have emerged to resolve pet custody disputes: first, the application of pure property law principles and secondly, the application of a ‘best interests of the animal’ test.”
She argues that “[t]he unique nature of pets as living and sentient property gives rise to two factors in particular: the emotional bonds that exist between the pet and carers and the interest the pet has in avoiding physical harm. It is advocated that these factors should be relevant considerations and may prevail over property law considerations. The extensive literature on children’s rights and the ‘best interest of the child’ test is harnessed to support and justify a new approach to resolving pet custody disputes – one which recognises the unique nature of this living and sentient property.”
To read the report in full go to http://lawfam.oxfordjournals.org/content/28/2/177.full
It will have to been seen whether the UK courts can be persuaded to take more of a US perspective on these matters but if they do then it could lead to an increase in litigation.
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