Divorce: Who gets the pets?

It is common during a divorce for parties to argue over primary residence of children, houses, cars, shares, investments, pension interests and even who keeps the wedding gifts. Attorneys seldom get confronted with the question: “Who gets to keep the pets?”

The issue pertaining to pets during divorce has been addressed in various other countries and led to some countries passing legislation which affords an animal more rights when their once loving owners divorce or break up. It is not uncommon for divorcing parties in some European countries to receive “dual custody” over a pet.

The legal position in South Africa is under developed in comparison to the United States and Europe. In South Africa our fury friends are treated as property. Therefore, the party who purchased the animal is the owner of the animal. This is however far from how most South Africans treat their beloved dog or cat that is often closer than a family member. Parties who do not have children, elderly persons and quite wealthy parties are amongst the South African groups that tend to quarrel over pets when it comes to divorce.

Although there is a constant outcry from animal rights activists to amend South African legislation in order to make provision for animal rights, your pet will not likely receive rights within the foreseeable future. The question then remains, how to deal with this issue during a divorce or breakup. In absence of legislation the most effective way to avoid a potentially expensive dispute is for parties to conclude a pet-nup, which is the pet equivalent to an ante-nuptial contract.  In Britain it is reported that 1 in 14 couples have a pet-nup in place. The pet-nup will generally contain the following:

  1. Which party keeps the pets when the marriage is dissolved; and
  2. Who will be responsible for the expenses in relation to the pets; and
  3. The other party’s “contact” to the pets.

Pets are not treated as property by their owners and should not be treated in such a way by the law. When it comes to a dispute pertaining to a pet during divorce, a court should be able to take certain factors into account when adjudicating upon the dispute. For example, the party with a garden (alternatively a more pet friendly home) should retain the pets. There are many other considerations which can be taken into account should the law in this regard be developed.

Until such a time and to avoid Coco listed between the leather couch and the food processor as “goods to be retained by X”, the pet-nup is an effective option to be considered.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

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