It’s not just two people separating but the division of a life’s worth of shared property, finances, and sometimes, children. While the legal system has clear rules for splitting financial assets and determining child custody, there’s another area that often leaves couples in emotional turmoil - deciding who gets to keep the family pet.

For many, pets are cherished members of the family, not unlike children. But in the eyes of Scottish law, pets are regarded as "property." This classification has significant implications when it comes to dividing assets during a divorce. Unlike money in a bank account that can be split, or a house that can be sold with proceeds shared, pets cannot be divided. They must be "allocated" to either one spouse or the other. This process can be fraught with emotion and, at times, legal wrangling.

The legal status of pets

Under Scottish divorce law, pets are classified as property. They fall into the same legal category as other tangible assets like cars, jewellery, and furniture. This may feel cold or unfair to pet owners, but it’s a reality of the legal framework. Children, by contrast, are never considered property. Custody arrangements for children are based on their welfare and best interests, while decisions regarding pets are determined by legal ownership and economic factors.

In most cases, the ‘fair division’ rule applies. This means that assets acquired during the marriage are divided equitably, though not necessarily equally. Fair division does not guarantee a 50/50 split. Instead, it aims for a division that is just and reasonable under the circumstances. Since pets cannot be physically divided, they must be assigned to one party, with potential compensation for the other in the form of money or other assets.

How is pet ownership determined?

If a pet belonged to one spouse before the marriage, ownership is clear-cut: it usually reverts to that person unless otherwise agreed. However, if the pet was purchased or adopted jointly during the marriage, things get more complicated. Who "owns" the pet in the eyes of the law? 

When answering this question, several factors come into play, including who paid for the pet, as the party who can prove they did may have a stronger claim. Similarly, courts may consider which party took primary responsibility for feeding, walking, grooming, and taking the pet to the vet.

However, in terms of financial contribution to care and upkeep, the spouse who paid for pet insurance, food, and medical bills might argue they should retain ownership. Plus, there’s also the relationship between the pet and any children of the marriage. If the pet is seen as integral to the children’s well-being, it’s possible the animal will remain with the parent who has custody of the children.

If no clear ‘favourite’ emerges from these factors, the sheriff will use discretion to make a final decision. It’s worth noting that this will not hinge on who loves the pet more, or emotionally appeals about the pet’s well-being. Instead, it’s a practical, legally driven judgement as part of the overall division of matrimonial assets.

The role of negotiation

Court battles over pet ownership can be expensive, time-consuming, and emotionally draining. As such, it’s often in both parties' best interests to negotiate a settlement. This could involve agreeing that one person keeps the pet while compensating the other with an asset of equivalent value. 

Alternatively, couples might agree to a ‘pet sharing’ arrangement, where the pet spends time with each party on a rotating schedule. However, while shared arrangements are possible, they can be logistically challenging, especially if the former spouses live far apart.

Negotiation is usually more cost-effective and less stressful than litigation. With the help of solicitors, couples can work out a solution that feels fair to both parties. If an agreement is reached, it can be formalised as part of the divorce settlement.

Can a prenuptial agreement cover pet custody?

One way to avoid future disputes over pet ownership is to address the matter in a prenuptial agreement. Although this may not be the first thing on a couple’s mind when acquiring a pet, doing so could prevent significant stress later on. A prenuptial agreement can specify who would keep any existing animals - and how ownership of future pets will be determined.

This approach allows couples to make decisions about pets with clear minds and shared goals, rather than during divorce proceedings when emotions are running high. Prenuptial agreements aren’t just for wealthy individuals with large financial stakes; they can be valuable tools for any couple with strong emotional or practical ties to specific assets, including beloved pets.

When it’s time to go to court

If negotiation fails, the case will head to court, where a sheriff will make a final ruling. The court’s decision on pet ownership may be part of a larger ruling on the division of all matrimonial property. Sheriffs have broad discretion to decide, and their orders may not align with either party’s personal preferences.

Pets may not be seen as family members in the eyes of the law, but for many people, they are an integral part of the home. Losing a pet during the divorce process can feel as painful as losing a friend or family member. For this reason, taking a pragmatic approach and seeking a settlement outside of court can save time, money, and emotional grief.

What types of pets are covered?

All pets are treated as property under Scottish law, regardless of species. This includes dogs, cats, rabbits, birds, exotic pets, and even livestock such as chickens or llamas. There is no special legal distinction made between different types of animals. While a dog’s emotional attachment to its owner might be profound, the law treats it no differently from a goldfish in terms of property classification.

Divorce is a challenging process, and disputes over pet ownership only add to the emotional strain. While Scottish law treats pets as property, it’s clear that for many people, pets are much more than that. To avoid the heartbreak and expense of a legal battle, it’s wise to seek a settlement through negotiation. 

If you’re considering divorce and have concerns about pet custody, consulting a family solicitor can help you understand your rights and options. With the right guidance, a fair resolution can be achieved that works for everyone - including your beloved pets.