Multispecies families? Pets in family law

On New Year’s Eve 10 years ago, I made a New Year’s resolution to spend more time with dogs, and it has been the most successful NY resolution I have ever made. It did not immediately result in a dog of my own, but I am now once again a dog owner having had a dog as a child. As the owner of a pet, one gets to know their likes and dislikes, their loathing of goats cheese but their febrile hysteria for green beans, their strange habits of bring a toy to the front door, the hiding places for their toys, their hatred for junk mail and the hoover. Most of all, you know with absolute certainty that your pet knows you and wants to be with you. There is a two-way emotional bond. They are not children, but they do have their own needs.

How then do the laws of any of the nations of the UK, a country of pet lovers, approach the vexed question of what happens to the pet on divorce or separation? The answer is, rather embarrassingly, that we treat them in the same way as a rug. They are a mere chattel which may depreciate and whose future possession is likely to be linked by the law to who purchased them, or in whose name they are registered. In my view, and in the view of many others, this is just not good enough.

FI v DO

Many of you will have the recent and seminal case of FI v DO [2024] EWFC 384, a case decided by District Judge Crisp, who clearly likes animals. As is clear, these disputes about the future care of a pet are not simply a matter of who paid for the animal – in this case a dog apparently purchased by both parties:

The legal authority to which I have referred provides assistance as to who has principally looked after the dog. Not who has purchased the dog, that fact in my view is not as important as who the dog sees as her carer. This is not who had previously looked after the dog, but who does now. It is an agreed fact that the parties separated and the dog has been cared for solely by the wife since that separation some 18 months previously. I accept what the wife says[:] 18 months is a long time in a dog’s life. It was clear when the dog ran back to the family home after he had been taken by the husband that the dog considered that to be a safe place and where he belonged. The wife’s evidence as I have set out was compelling but more importantly in my view showed someone who understood about dogs, was compassionate and would always put the dog’s interests first.

This judge quite rightly considered that who the dog considered to be its carer, and where it considered to be its home, was highly relevant to the decision as to who would be its legal owner in the future.

So what about overseas?

As a long-term member of the Resolution International Committee and a Latinophile, I have been following with interest the development of the law in relation to the treatment of pets in Latin America and in Spain. Over the years Colombia, Argentina and Spain have all – either by way of legislation or by way of case law – changed their laws to ensure that a pet is not treated in the same way as another chattel on divorce or separation. This may come as a surprise to many readers. Spain legislated in 2022 such that the welfare needs of a pet must take priority. Courts must now consider the welfare of a domesticated animal as a priority, taking into account the emotional and care needs of the pet. In addition, the court may consider the emotional bond with family members and the best interests of the animal, in the context of separation or divorce situations.

In Argentina and Colombia the changes have come about by way of case law. In both countries there has been reference by higher courts to the concept of a “multispecies family”. See for example the 2023 case in Argentina in relation to a Dachshund called Pope whose owners had divorced. The wife was permitted to see the dog on the basis that they formed a multispecies family. In Colombia there was similar litigation in relation to a dog called Simona that same year. The Colombian judges took into account the emotional bonds of the dog with the family and not just the property rights, as this was another multispecies family case.

Working group on pets on divorce and separation

Sarah’s dog, Apollo

The stark contrast in the developments overseas to the UK laws began to concern me. Last year, together with Estella Newbold-Brown from Amphlett Lissimore, we began to think about trying to change the law to bring the UK into line with current thinking on pets. There are, after all, apparently 13.5m pet dogs and 12.5m pet cats in the UK. Whilst an initial event was held at the Kennel Club, readers should be in no doubt that this proposed change is not limited to dogs alone. This is for all pets, whether they are birds, horses, cats or otherwise.

In January of this year myself and Estella set up a working group composed mainly of family lawyers with an interest in this topic. This includes a past chair of Resolution and cat lover, Jo Edwards, lawyers from Scotland and Northern Ireland, as well as a number of silks and the lawyers involved in the case of FI v DO above.

We also have on board a vet from the All-Party Parliamentary Group on Dog Welfare, a veterinary nurse and an animal behaviouralist – Karis Nafte. Karis has written what is probably the only guide to mediating disputes about pets on divorce, and indeed she has been key in bringing about legislative change in other common law jurisdictions as well as running training courses for people mediating these sorts of disputes. Her book “Who Keeps the Dog” (www.whokeepsthedog.com) is rather interesting, not least as it suggests that in most cases a shared care arrangement is not in fact in a dog’s best welfare.

Over the past months we have been collating information from overseas family lawyers in relation to the position in their jurisdictions. It has become very, very clear that the whole of the UK is now an outlier in relation to the treatment of pets on divorce. Civil law jurisdictions (eg Spain, France, Portugal, Germany, Italy and Romania), as well as Latin America, have all changed their laws to provide that pets are not treated the same way as any other chattel on divorce and separation.  Unsurprisingly, in common law jurisdictions there has also been widespread change, including in Australia, New Zealand, British Columbia (Canada) and many of the states in the US. There is also a project for the remaining US states to be bound by a uniform law on pets on divorce across the whole of the US.

We also understand that Hong Kong is actively considering whether to amend its law to cater for pets.

The next steps

On 26 February 2025 there was a House of Lords debate on pre-nuptial agreements. The Working Group was very fortunate that Baroness Berridge raised the issue of the treatment of pets on divorce in this debate and the Working Group was mentioned with a view to us meeting with the government, which we very much hope to do as soon as possible. The comments on pets in this debate can be viewed here from 16.50 onwards at https://lnkd.in/ddNwSKxg

Our intention is to effect a simple change in the law by considering what other overseas jurisdictions have done and then making a recommendation. This proposal has the backing of Sir Nicholas Mostyn and also the Kennel Club, as well as many other family lawyers and also a few celebrities!

With this in mind we have set up a LinkedIn page – the Working Group for Pets on Divorce and Separation – which we will be using to update our activities. We would invite everyone who supports this relatively minor change to the law to follow us to receive updates as to what is happening and to support the project more generally.

slcooper@thomasmore.co.uk