Published: 17th July 2014
Most people's view of family law disputes in the event of separation revolve around two issues: division of assets and custody of children. However, there is a third issue that can be very complex in many cases, and this is custody of pets.
Property or family?
The complexity arises in part from the fact that pets blur the line between property and family. Indeed, a look at various ways in which these issues are dealt with around the world shows that some jurisdictions treat them as property and others as kin. The UK currently falls into the former camp, with pets being legally classes as possessions when it comes to disputes.
This view is often at odds with the stance adopted by pet owners themselves. A 2005 survey showed that as many as 87% of those with dogs viewed their pet as a family member, and a relatively small but nonetheless significant portion (15%) would pay more than £10,000 in return for custody. In 2011, another survey showed that 20% of couples with pets who underwent a separation fought for custody of the animal.
Pets are not only seen as family members by many owners, but they are also unique among forms of "property" as a living entity with their own rights and welfare concerns. For these reasons, links are frequently advocated with the way child custody cases are treated. Just as children are often placed in the way which is judged to work in their own best interests, so an approach that emphasises the best interests of the pet is frequently proposed and, in some jurisdictions, used. This, in the eyes of many people and legal professionals, should at least be considered alongside regular property law, and if necessary result in a different judgement to that which would be reached by using property law in its unalloyed form.
The Animals Best Interests
The consideration of an animal's own best interests takes two aspects into account. Firstly, it must consider the strength of the emotional bonds that may form between a pet and its owner. These bonds are certainly powerful enough to be given consideration. A 2008 study on kinship, which did not even specifically ask about animals, found that roughly 25% of respondents automatically mentioned their pets as kin. Of course, the fact that at least one partner feels a strong emotional bond with the pet is usually the reason for a dispute to occur in the first place.
Secondly, such a decision must consider the pet's rights and welfare. For example, just like a child a pet has the right not to be mistreated, abused or neglected. If this right would be better served with one partner than the other, this should inform the decision on who gets custody.
Should the law in England and Wales see any future reforms on these lines, it remains to be seen whether pets will gain their own "best interest" treatment drawn from that of children or simply have these factors considered alongside property law - at present, however, pets remain property in the law's eyes.
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