In 2021/22, pet ownership levels peaked at an unprecedented high of 62 per cent of households, as a result of the covid-19 pandemic and the increased amount of time people were able to spend at home. It is now estimated that 13 million dogs and 12 million cats are living in UK homes.
Earlier this year, the Animal Welfare (Sentience) Act 2022 received royal assent. This will require the government to establish an Animal Sentience Committee to scrutinise and report on whether the government is taking into account the adverse effect of any policy “on the welfare of animals as sentient beings”.
Family pets often play an integral role in family life, and it will come as no surprise that decisions surrounding who will keep a pet and where a pet will live can be a hotly contested aspect of settlement negotiations when a couple decides to divorce or separate. It is currently estimated that one in four divorces includes a dispute over a pet.
Under English law, pets are treated as ‘chattels’, which amounts to a movable item of personal property. In effect, cats, dogs and other animals are given the same legal status as other inanimate objects such as cars, paintings or jewellery. So although animals are now recognised as sentient beings in law, their welfare is rarely taken into consideration when making arrangements about their care following a divorce.
The person who bought the animal and to whom it is registered will in theory keep it unless there is clear evidence that the animal was subsequently gifted to the other party.
If the couple cannot agree on who will have ownership and keep their pet, then the Courts will be asked to make a decision, and this will likely be based on the legal ownership of the animal. However, Courts do have the power to order the transfer of the legal ownership of a pet from one party to the other, just as it would do for any other item of personal property.
In January 2022, the Spanish government introduced new far-reaching legislation whereby animals will no longer be considered ‘things’ and instead be treated as sentient beings. These new laws will apply to divorce proceedings and Family Courts will have to consider the animal’s welfare and the family’s needs when deciding who will care for the pet. Caring responsibilities may be shared, and it will be mandatory to determine a home for the animal.
Family judges will be able to go as far as to stipulate the participation of ex-spouses in the maintenance of the pet and its care. The owners must guarantee the welfare of the pet and if either of them has a history of cruelty towards animals, they may be denied or lose custody of the animal.
Decisions relating to the custody of the children of the family may also be determined by reference to the parties’ treatment of their animals. Violence against an animal may indeed be treated as a form of vicarious violence towards the family’s children.
Like in England, legislation was passed in February 2015, which recognised animals as living beings endowed with sentience. However, animals are still treated as movable property when it comes to separation or divorce. Consequently, in the case of a separation, pets will be subject to the same rules as any other property.
The position there is similar to that in England and France. Although the Civil Code provides that a pet is not a chattel and that animals are protected by special laws, when it comes to divorce, animals are treated the same as other household items.
New York State
Looking further afield, the position in the state of New York is more aligned with that of Spain. The legislation was introduced in 2021-22, which requires the best interests of a companion animal to be considered when awarding possession in a divorce. This legislation places animals in a similar position to children. The factors considered by the court include who the primary caretaker was, whether the pet was owned before the marriage, any incidences of domestic violence or violence against animals and any special needs of the pet.
It remains to be seen whether English laws will in time catch up with Spanish and New York legislation by imposing stricter rules – the passing into law of the Animal Welfare (Sentience) Act this year certainly feels like a small step in that direction.
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