On divorce, you may be able to agree a financial agreement with your ex-partner down to the division of your silverware. You may also be able to agree shared care arrangements for your children. However, the question of who should keep the dog can be highly contentious for many couples.
The approach of the English Family Court
For many of us, the emotional connection we have to our pets is irreplaceable. However, the English Family Court takes a very different view: pets are to be considered as part of a financial settlement in financial proceedings on divorce.
A Court would treat the pet as a chattel (i.e. a piece of property). The pet's welfare is not considered by the Court and the focus is instead on ownership.
The Court has the power to transfer property between parties if an agreement is not reached and in the same way, the ownership of a pet can be transferred. However if one party bought the pet or it was their original family pet then the court is more likely to consider that they should continue ownership of the pet, even if they have a "lesser" relationship with the pet and in fact the other party took care of the pet during the relationship.
The welfare of the pet
That said, in RK v RK, Moylan J took the view that the way the pet was cared for was relevant.
“There are a few subsidiary issues I must determine, including the wife's claim to a painting and to one of the family dogs. On the latter issue, I do not consider it appropriate to make any order in respect of one of the dogs because, on the evidence I have heard, they would seem to have been looked after principally by the husband.”
This suggests that it may be possible to argue that it is relevant that you are the person who has always cared for a pet, if you want to argue in court that you should therefore keep the pet.
Further, the Animal Welfare (Sentience) Bill, which formally recognises certain animals as sentient beings, is currently making its way through Parliament. Whilst it will be some time before the Bill might be made law, it may be possible to argue that animals are expected to be regarded as sentient beings, and that it is something the court should have more recognition of when it comes to what happens to the pet on divorce.
Although such arguments can be made, as the law currently stands, pets are still formally treated as chattels.
Shared care arrangement
It is possible to negotiate and agree with your ex-partner various other arrangements in respect to your pet rather than relying on the court to make an order. You can make a "shared care arrangement" in respect of the pet for example on an alternating basis, or if for example you have children, the pets could move with the children particularly if the children are emotionally attached to the pet. Anecdotally, Judges have also sometimes been willing to make orders dividing a pet's time between the family.
Who your pet should live with is an issue which should be considered early on in discussions with your ex-partner as to what should happen following your divorce, as it is an issue which is much better sorted out by an agreement than through the courts.