Separation can be very stressful and upsetting, particularly where there are third parties involved. But children are not the only dependents who can end up stuck in the middle of a difficult relationship coming to an end. With lockdown restrictions sending the number of new pet owners skyrocketing, the team at Johnson Legal have been considering the options available to parties in a post-separation stalemate regarding their beloved pets.

To whom does Fido belong?

Unfortunately, the cold, callous heart of Scots law considers pets as the property of their owners. There is no test of welfare. There is no consideration as to who endured those cold winter morning walks, who remembered the birthdays or who cleared up the mess. This means parties need to think practically about the future of all their shared assets and liabilities, pets included.

Of course, when considering property in a relationship the first question usually is – who owns it? If a pet was brought to the relationship by one of the parties, it usually is the property of that person and it would leave the relationship with them. If the pet was purchased during the relationship, things become more complicated. In the case of a married couple, for example, animals are expressly excluded from being defined as “household goods” and therefore do not automatically attract a presumption that they are owned by both parties. It can be challenging and sometimes impossible to identify one party as the pet’s owner.

What are the options?

There has been surprisingly little mention of pets in notable divorce cases in the Scottish courts, which has left the law somewhat ambiguous. Perhaps this is because by the time a case reaches the doors of the court, a significant amount of time has usually passed since separation and something requires to happen to a pet in the meantime.

Pets require love, care and attention from day one post-breakup. An arrangement will need to be identified and agreed upon fairly quickly to ensure the pet remains well cared for. As with all separation issues, parties should enter into discussions with an open mind, willing to be somewhat reasonable and prepared to make some compromises. It may be that, if parties share the care of children, it also makes sense to share the care of any pet so that the pet can remain with the children. This can have some practical difficulties but, if parties are able to cooperate, it can work well.

If sharing care of the pet is not an option, negotiation is key. As with all negotiations, different people attribute differing value to different things. There might be an arrangement which can be mutually agreed which will leave parties with a fair distribution of what they want. If a pet is more important to one party and something else is very important to the other then a compromise can hopefully be made to make everyone as content as possible with the split.

“Let the court decide!”

Negotiation impossible? Parties should think very carefully before threatening litigation in relation to a pet. There is a reason why there have not been notable cases involving family pets. Litigation is expensive, can be stressful and the courts in Scotland are under significant pressure of business, particularly in the current climate. Commencing litigation in relation to a family pet is not likely to tug at the heart strings of the decision-maker and, instead, may end up having the opposite effect.

As an alternative to raising court proceedings mediation can be a useful tool, particularly where the subject matter means emotions will likely be running high. Mediation can allow parties to discuss matters in a confidential and safe setting and the mediator should be able to direct discussion towards progress and away from any unhelpful side-tracks. If negotiation between solicitors does not resolve matters then mediation is a very sensible next step. Prior to mediation, it is advisable to obtain independent legal advice in order to enter the mediation as informed as possible in relation to your legal position.

Drawing up an agreement

It is open to parties to draw up an agreement about any and all matters, including a family pet, at any stage in their relationship. As with all written agreements, parties should think carefully about what they want to confirm in writing. The terms should be concise and unambiguous. Solicitors are experienced in drafting such documents and it would be of great advantage to consult a solicitor in order to assist with the drafting of any written agreement. The drafting of a “pet-nup” may seem trivial at the time, but could help parties later on when there’s many difficult decisions to be made all at once.

Contact Johnson Legal on 0131 622 8477 to discuss your options and receive informed advice in relation to any matters arising out of separation.