The Family Law (Scotland) Act 1985 defines "matrimonial property" as all the property belonging to the parties or either of them at the relevant date (date of separation) which was acquired by them jointly or individually, otherwise than by way of gift or succession from a third party, before the marriage for use as a family home (or furnishings for such a home); or during the marriage but before the date of separation. On separation, there will be discussions as to what happens to the matrimonial home, car, furniture, and the parties' pensions, but what happens to your beloved pet?
Is your pet a family member or asset?
Some European countries, such as Spain, have determined that pets are to be officially considered as family members and recognises pets as 'living, sentient beings'. By recognising pets in this way, and not just as objects, the courts must consider the pet's welfare when deciding what happens during the separation of married couples. The party retaining the pet must guarantee the pet's well-being.
In Scotland, most pet owners also view their animals as family members; however, Scots Law treats pets as 'assets'. This means that your beloved pet is viewed in the same way as your sofa or car during a separation, and their welfare is not a factor to be taken into account when determining ownership.
What happens if there is a dispute about pet ownership?
If there is any dispute about pet ownership during a separation, the first course of action, if possible, is for there to be negotiation directly between the parties. If negotiations are not possible, or are attempted but ultimately fail, it may be worthwhile instructing a mediator with expertise in pet disputes. As an independent third party, a mediator can facilitate discussions between the parties, to assist them in looking at how matters might be resolved.
Alternatively, parties could instruct a solicitor to conduct formal negotiations regarding the pet. Any agreement reached could be documented in a contract. The agreement could detail any care arrangements, including contact with the party who the pet is not primarily residing with, and who is responsible for meeting the costs involved with the pet e.g. vet bills, insurance, food, dog-walking services and so on. The party retaining the pet may ask for a financial contribution from the other party to assist with the costs of caring for the pet.
Courts have the power to make an order regarding the division of assets during a separation; however, given the cost and stress of court proceedings, this would very much be a last resort. When deciding who should keep the pet, the court will consider factors such as who paid for the pet, who the pet is registered to, who pays vets bills / insurance etc. As the pet is viewed as an 'asset', the welfare and best interests of the pet would not be taken into account. Difficulties may arise if both parties contributed to the purchase of the pet.
Pet-nups: How to prevent a pet dispute
It may be worthwhile, before purchasing the pet, that parties enter into an agreement ('pet-nup') setting out what will happen to the pet in the event of separation or divorce. The agreement could detail who would retain sole ownership in the event of separation, as well as care arrangements, including who would be responsible for any expenses associated with the pet. The agreement may also cover any 'contact' the other party may have with the pet.
As with pre-nups, the courts do not currently recognise 'pet-nups' as legally binding, however, the court is likely to take such an agreement into account, if it was entered into willingly by both parties.
"Pet-nups" are just as vital (if not more so) where parties are living together without being married.
Should you require advice about the above matter, please do not hesitate to contact a member of our team.
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Solicitor
