Thursday, 23 August 2012

Man or woman's best friend? Pets on divorce and separation ...

A divorce case from Israel recently made the headlines when a man was granted a divorce because his wife refused to get rid of the 550 cats she had brought to live in their family home. The vast number of cats in the house prevented the husband from using the bathroom as the furry felines got in the way, he could not prepare food in the kitchen without the cats eating it, and a good night?s sleep was impossible because the cats refused to relinquish their occupation of the marital bed. Rather unfortunately, the wife decided to keep her cats rather than save their marriage.

Whilst disagreements over pets can clearly contribute to relationship difficulties, family lawyers more frequently see disputes about pets being aired once a relationship has ended. At CFLP we occasionally see disputes about with whom the pets will live with once a couple splits, and disagreements over the amount it will cost to maintain the animals may feature in arguments over finances.

Although you might see this as one of the more trivial issues within the context of divorce, it?s actually not: as a nation of animal lovers, we see our pets as family members, and for some people the emotional impact of losing a pet as well as a spouse or partner should not be underestimated. Often arguments over the family pets can threaten to derail negotiations or settlements which have otherwise gone well, so we tend to find that it is sometimes worth considering the animals? living arrangements early on in the process.

For pet owners it can be galling to learn that the English courts consider animals to be mere ?chattels? (i.e. simply possessions akin to cars, furniture or computers). Where the animal has a significant financial value, as in the case of pedigree dogs or horses, the court may ascribe a monetary amount to the animal in the division of the family?s assets. Setting off the value of a child?s pony against a valuable painting may not be an exercise many people relish, but this reflects the approach in law.

Despite treating pets as chattels, the courts are often asked to make orders relating to them. In the 2008 case of S v S a woman from Gloucestershire was awarded ?900,000 in her divorce settlement to enable her to buy a house with sufficient grazing for her three horses, and ?50,000 of her overall maintenance award of ?80,000 per year was earmarked as maintenance for the horses. The husband?s argument on appeal that the horses were an unjustified extravagance was dismissed by the judges, who said the wife?s love of horses had been a feature of their marriage. Although not yet tested by the courts, those who breed and show dogs, or other animals, may well have a case for a maintenance award to support them in the style to which they are accustomed, especially if that activity has been a feature of the marriage.

In last month?s case of RK v RK the wife asked the court to make an order regarding the ownership of one of the family?s dogs, but was unsuccessful as the judge decided that the husband was mainly responsible for looking after them. So the position taken by the courts can vary, and will depend on the arrangements for caring for the animals during happier times.

The law here has yet to catch up with the position in some US states where judges now consider the animal?s best interests in deciding ?custody? disputes, which is a concept usually applied to decisions about where children will live. According to the American Academy of Matrimonial Lawyers, US lawyers have seen a 23 per cent increase in pet custody cases, and a California based lawyer has even written a book about how to co-parent a dog with an ex!

Overall there are a few key points to remember about animals and family breakdown in terms of how the courts would approach the relevant issues. First, the cost of keeping the animals forms part of the income needs of the parties, and can form part of a maintenance award. Secondly, courts can decide with whom an animal will live in the same way that they can order property to be transferred from one party to another. Thirdly, if animals have formed an important part of family life, the facilities necessary for looking after them (e.g. space for kennels, land for grazing) can be a part of the overall award. Of course, if you choose to resolve your dispute by mediation or by collaborative law, the principles of what makes a fair settlement are entirely yours.

We recommend trying to agree arrangements for the pets early on. CFLP will be happy to advise you on drafting agreements for visiting arrangements or maintenance contributions for pets either as a stand-alone agreement or as part of the overall arrangements. Separation at the end of a relationship is always a distressing time, and it only adds to the distress having a judge decide who gets the dog, goldfish and budgerigar ? just chattels to the judge, but family members to you and your children.? Do give Adam, Simon, William, Sue or Gail a call on 01233 443333 if there is anything you?d like to chat through.

Source: http://www.cflp.co.uk/man-or-womans-best-friend-pets-on-divorce/

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