Claire Thomas: Fur is flying over who gets to keep the pets

As a nation of animal lovers, pets are often seen as another member of the family '“ but what happens when a couple divorces or separates?

Where residence of a child of the family is in dispute then, in the absence of parental agreement, a court makes an order on what is considered to be in the best interests of the child. Welfare of the child is paramount. The same consideration does not apply to pets and animals, yet a dog will most likely have attachment to all members of the family. It might also be vital in helping a particular child adjust to changed domestic circumstances.

In Scots law, pets are treated as the personal property of the person who purchased the animal. Courts do not generally make decisions on personal property and tend to urge the parties to agree division. Unlike household goods purchased during a marriage or cohabitation, there is no presumption of an equal share in pets.

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Pets can also be costly, so it’s perhaps not surprising that pet ownership and pet maintenance are an increasingly disputed issue in separation.

There are some considerations for courts when pet ownership becomes disputed. It may be necessary to properly focus whether the pet has any financial value – is it a Crufts champion or future actor as well as being a family pet for example?

The Family Law (Scotland) Act 1985 Section 9 (1) (c) recognises the economic burden of caring for a child of the marriage under 16 after divorce. This has not been extended to cover animals.

Section 9 (1) (d) allows an award to be made to a party who has been “dependent to a substantial degree on the financial support of the other party”. They may be awarded “such financial provision as is reasonable to enable the party to adjust over a period of not more than three years from the date of decree of divorce to the loss of that support”.

Section 9 (1) (e) allows an award to be made to a party who at the time of divorce “seems likely to suffer serious financial hardship as a result of the divorce”. A party should be awarded “such financial provision as is reasonable to relieve him of hardship over a reasonable period”.

These principles were recently considered in respect of animals.

In EG v GG [2016] CSOH 32, the Pursuer sought a periodical allowance starting at £2,750 per month, effectively to finance the upkeep of her three horses. This sum was to be reduced following the death of each horse. At the Proof, or evidential trial, expert evidence was led to the effect that the Pursuer suffered from a chronic depressive disorder and was emotionally dependent on the horses. If she was required to give away or have the animals destroyed, her mental condition would deteriorate. The Pursuer had retired from her employment in the finance industry on the grounds of ill health, with the prognosis that it was unlikely that she would return.

The Judge accepted that the Pursuer’s age, ill health and lack of formal qualifications militated against her obtaining future employment. With respect to Section 9 (1) (d), it was noted that the purpose of the provision was to ‘adjust’ to the loss of support on divorce rather than extend the matrimonial standard of living indefinitely. Payment of £2,000 per month for one year and £1,500 per month for a further year was ordered. The principle was not permitted to be extended to pay for the upkeep of animals.

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With respect to the Pursuer’s claim under Section 9 (1) (e), it was held that her circumstances could not be described as financial hardship given the existence of other assets and even if there was such hardship, this would be caused by upkeep of the horses rather than the divorce itself.

It must be remembered that the Court does have wide discretion when considering financial provision on divorce and different Judges may take a different stance.

Other legal systems have started to take a different approach towards pets and animals in recent years. Judges in the US, for example, have heard expert witnesses regarding what is in the pet’s long-term interests. Perhaps in the future the Scottish legal system may follow suit but there are no signs at present of that happening.

Claire Thomas is a solicitor with BLM