Pets on Divorce: Pets' welfare will be considered in divorce battles in Spain, should English courts follow suit?

It is an undisputed fact that pets can bring a great amount of joy, companionship and entertainment into a family. A pet is usually treated like an integral part of a family until the family dynamics change and there is a divorce. The difficulty with having a pet while going through a divorce is making the tough decision of what arrangements will be made for the pet.

Despite being an integral part of a family or a best friend, pets are treated as chattels under family law. A chattel is described as an item that is personal property and is movable. For animal lovers, this means that a pet is given the same treatment as any other personal property, such as the fridge freezer, bed and clothing.

As such, in many countries, including England and Wales, when deciding who keeps the family pet on divorce, the court takes into account: (1) who paid for the pet; (2) who had legal ownership of the pet; (3) and who paid for the pet insurance. 

The reform in French and Portuguese law obliges family judges to consider pets as sentient beings (every conscious creature) rather than objects owned by one or the other spouse, which was how pet disputes were always resolved before the new law passed. Spain has also followed suit and the Spanish law will now take into consideration the welfare of a pet when the arrangements for the family pet cannot be agreed on divorce. For example, In October 2021, a Madrid judge gave joint custody of a dog to an unmarried couple who could not agree the arrangements for their pet on the breakdown of their relationship. It was ordered that the pet would spend a month with each party and both parties would be legally responsible for the dog.

A Spanish lawyer correctly identified that "Animals are part of the family and when a family decides to separate, the fate of the animal must be regulated with the same importance as the fate of other family members", i.e. children of the family. As such, there are strong arguments for the English law to follow in the footsteps of France, Portugal and Spain and consider the welfare of a pet on the breakdown of a marriage.

On the other hand, the court is already assigned with the very difficult task of deciding the arrangements for the children of the family. Having to decide the arrangements for the family pet in addition to that can increase time, legal fees and acrimony. Therefore, there are also strong arguments for the English law to continue as it has been doing by treating pets like chattels and encouraging parties to reach an agreement regarding the arrangements for their pet on divorce.

If your marriage has broken down and there is a pet involved or you are considering welcoming a pet into your marriage then our specialist family law team can assist you in agreeing the arrangements for your pet or putting measures into place to ensure that any potential disputes arising in the future can be avoided.

Please do not hesitate to contact us should you require our assistance.