From rugs to retrievers — what counts as a 'chattel' in divorce is being redefined. In this Q&A, Josh Moger, quoted in The Times and recently crowned Family Lawyer of the Year – Partner at the Citywealth Future Leaders Awards, digs into one of divorce’s more unexpected battlegrounds: the family pet. Sharing anecdotes from cases involving everything from dog ‘shared care’ to Zoom calls with cats, Josh unpacks the legal and emotional complexities of pet disputes - and shares how to improve your chances of keeping your four-legged friend.

You are a big fan of Biggles, by all accounts!  How is he relevant to our discussion about divorce?

Biggles is a huge part of our lives (figuratively and physically). I loved the Biggles books growing up – the main character, Captain Bigglesworth (Biggles for short), was an unstoppable force of nature: rambunctious and with active disregard for the RAF’s rules. And so, when we picked up our new dog four years ago, my wife and I felt no name better conveyed his character – a typical Airedale terrier, Biggles does what he wants, is selectively deaf to our commands and pushes (us to) the limits. But we’d have him no other way!

The humanisation of dogs, and pets more generally, is a cultural trend that really picked up pace in/after lockdown. They have always been ‘part of the family’, but in the modern world where ‘family’ takes many different shapes and guises, they increasingly have a prominent part to play where a ‘family unit’ is being broken up by divorce. Every case is different, but there are two circumstances where I often see the family pet take a particular significance; with younger couples, who either haven’t been able to have children or have taken the decision not to have children, and with older couples, typically where the children have grown up and no longer live at the family home, and so the family dog takes an important emotional support role.

You have to remember in all of this – divorce – and the lives that people want to lead after it, is entirely personal. As a family lawyer, I always focus on the fact that clients don’t care about what was significant to other clients and the experience they had – it is about what, subjectively, is important to them. And with the humanisation of pets, what happens to them is now taking a new significance. In fact, I would say that 10-12 years ago the reference to ‘what happens to the family dog’ was very rare, possibly in less than 1% of cases – Now I find that it is closer to 10-15% and the trend is only increasing.

Given that pets can, for some clients, have significance akin to that of a child, does the law reflect that in divorce cases?  

In short, no. But it may be changing. In England and Wales this trend actually started with the criminal law; following well publicised ‘dog snatching’ in/following lockdown, the criminal law was updated to have a specific offense of stealing a pet – to recognise that, as opposed to conventional theft of a personal possession, there is significant emotional hurt caused by theft of a pet.

But in divorce, pets are still classed as ‘chattels’, and so as a starting point they are treated in the same category as the kitchen fork or the sofa cushions. What is gradually happening however, is that the Court, in dividing up the chattels and deciding who retains the family pet, is considering a broader range of factors and the issue is being treated more like a shared care children contact dispute. This is best shown by the aptly named recent case of FI v DO [2024]. The Judge referenced that the cross-examination about the ownership and care of the family dog felt like they were “in the realms of a Children Act application”. The Judge went on to consider the welfare of the pet (a typical Children Act consideration), and where the animal itself considers home (the family dog in FI v DO having been snatched by the husband, and thereafter escaping and running back home to the wife). And maintaining the status quo, the dog having been with the wife since the parties’ separation. There is now, in FI v DO, a guide to the extent to which family pets will be treated differently from other chattels.

You mentioned ‘shared care’ in relation to pets.  When both partners want the pet, how does the court decide with whom the dog lives?

FI v DO dealt with an absolute position, with either the wife or the husband being awarded ownership of the family dog. As such, we do not yet have any authority about where the Court might be willing to award joint ownership, which might lead to ‘shared care’ regimes, i.e. where the family pet splits its time between two homes.

In the absence of any law, the way it is dealt with at the moment is by specialist family lawyers, like me, who regularly deal with issues relating to pets and divorce, seeking to reach ‘shared care’ regimes by consent. For example, I had a client for whom we agreed three day / four day a week contact schedule for the family cat – with ‘handover’ sorted by the housekeeper (there was also Zoom contact when the cat was not with my client – which I accept is at the more extreme end – but was important to my client).

What also comes up is the family pet moving between houses, at the same time as the children do. I have agreed this for pets ranging from the family dog to the hamster and even the family stick insect. In a time where there can be huge turmoil for children, having the emotional support of the family pet can be a huge reassuring factor and constant for them.

What about holidays? If a couple has ‘shared care’ of a pet, are there restrictions on taking them away, either within the UK or abroad?

Yes, you only have to look at Instagram (something I never thought I’d be saying in my practice) to see how increasingly people take their dogs on the plane with them (particularly if it is a private jet!). There is no applicable family law on travelling with a pet (although you may need to show proof of ownership to satisfy international/travel law), so restrictions only really apply where you have agreed a shared care regime with a former spouse. In that case, you can include in the agreement that you need to provide undertakings confirming that you would only travel abroad with the pet with the express permission of the other owner and return them to England & Wales after the travel.

Do people ever forfeit financial assets or other entitlements to ensure that a pet lives entirely with them?  If so, does it work?

Yes. I’ve had a client who said that she’d accept £millions less than her entitlement under a pre-nuptial agreement, provided that she got the family dog.

There can, however, sometimes be an unsavoury undertone to these sorts of arrangements, and so I do urge caution around these sorts of arrangements as they can be a sign of exploiting an unfair/dominant position. If a family lawyer wrote to another family lawyer, saying that ‘my client will give your client £5m, but they’ll give them £6m if the children live with my client full time’ then there’s a good prospect that the solicitor would be reported to our regulator for effectively leveraging the welfare of a child for money. But replace in that line ‘the children’ with ‘the family pet’ (aka a chattel), then the solicitor would feel comfortable writing it. But what that doesn’t factor in is that, as discussed above, the family pet can, for some clients, take an emotional significance akin to a child, and so they can, on occasions, be leveraged into a lesser financial settlement in order that they also receive ownership of the family pet. Good solicitors should be alive to this concern.

Is there a way to prevent these disputes from arising in the first place?

Increasingly, in pre-nuptial agreements, we are seeing reference to what happens to the family pet. It can cut through disputes that would otherwise arise on the dissolution of the family. Careful consideration however needs to be given to the drafting – family pets often do not live as long as a marriage lasts (albeit I accept not always!) and so, for instance, naming a specific pet can fail for uncertainty where there is a second or third family pet.

And finally, what advice would you give to someone who wants to ensure they keep their pet if their relationship ends?

Answering this question makes me smile as, stepping back, and following FI v DO, a lot of the points are similar advice to what you would give on a children contact dispute:

1. Be the pet’s ‘primary carer’ – you’re the one that the pet recognises as the main figure in its life. The example in FI v DO of the family dog running back to the wife is a powerful demonstration of this.
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2. Make sure that, in a separation, the pet is with you a minimum of half the time. It is clear from FI v DO that value is placed upon continuity for the pet and if, post-separation, the pet has been with you for the majority, or all, of the time, then that status quo is an important consideration.
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3. Traditional forms of ownership, such as showing proof of purchase in your name, being registered as the pet’s owner on its microchip, at the vet, etc, whilst not determinative, are still going to be helpful in the overall factual matrix.
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4. Not addressed in FI v DO, but showing that there is an element of reliance by the owner on the pet must be helpful. For instance, registered therapy dogs, or showing how they help with anxiety or depression, will naturally aid a Judge in deciding that the pet should stay with that individual.
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Conclusion

As can be gathered from our discussion, disputes over pets in divorce proceedings are becoming increasingly common – and increasingly complex. As Josh highlights, while pets may be legally viewed as chattels, their emotional significance often rivals that of children, reshaping how they are treated in negotiations and settlements. If you’re concerned about what might happen to your four-legged companion during a separation, we encourage you to get in touch. We would be happy to help you secure the best outcome for both you and your pet.

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Mark Estcourt

CEO at Cavendish Family Office

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