Pets, Divorce and Separation

For many people, a family pet is much more than just property. The question of who will keep the beloved pet can be a significant concern and an important part of divorce proceedings. Based on our experience, emotional disputes over pet custody are very common.

Getting a Petnup

Some couples choose to establish a “petnup,” an agreement that outlines the care of the pet in case of separation or divorce. This document specifies who will look after the pet, who will cover vet fees and other expenses, and what will happen to the pet if one party goes on holiday.

How is Pet Custody Legally Decided in Scotland?

If couples cannot agree on pet ownership, the courts will examine proof of ownership and rule accordingly. The legal owner is not obligated to give the non-legal owner access to the pet. A court will consider:

1. Who purchased the animal
2. Who primarily cared for it
3. Who paid the vet bills
4. Whose name the pet is registered or microchipped in

The exception is if there is clear evidence that the animal was subsequently gifted to the other party. In some cases, pet custody is resolved by transferring ownership and pedigree or by sharing custody and maintenance costs.

Since an animal is considered a chattel, similar to a car or possession, courts can order the transfer of ownership. They can also calculate pet upkeep costs when determining financial settlements.

What is a Petnup?

A petnup is similar to a prenuptial or separation agreement but specifically addresses pets. It typically covers ownership, custody, maintenance, and other arrangements for the pet in case of separation or divorce. These details can also be included as clauses in a prenuptial or postnuptial agreement.

Why Should I Create a Petnup?

We always recommend couples resolve pet-related issues mutually where possible. A petnup ensures that all eventualities are considered and agreed upon beforehand, preventing heartache and potentially costly legal proceedings. It is a worthwhile step to determine what will happen to the pet in the event of a separation.

What Should a Petnup Include?

Factors to consider in a petnup include:

1. Who will the pet live with?
2. Who will care for it?
3. Who will pay the vet bills?
4. Who will cover food and other expenses?
5. Who will look after the pet when you go on holiday?

It is essential to consider the pet’s best interests. For instance, if one party is away at work all day, it might be fairer for the pet to live with the person who is home more often.

You might also adopt a shared care approach. For example, a pet dog could be regularly taken for walks by the party who no longer lives with the pet or provide pet care while you are on holiday. Ensure both parties have the time and resources to care for the animal if you decide on shared care.

As a contractual agreement, a court would likely uphold the terms of a petnup in the event of a divorce.