Who gets the dog in a divorce?

Believe it or not, this can be the most difficult and contentious item in a domestic separation. Whatever the couple – married man and woman, cohabitees, civil partners, an otherwise amicable or business-like negotiation can turn into a bloodbath over the family pooch.

Before we explain what happens to the family pet there are a few fundamentals that need to be understood. Scottish law provides a comprehensive suite of rules and practices for what is called fair division of property. It also governs where children go, who gets the house, what happens to pensions and what grounds are allowed for actual divorce or separation – the whole shebang. This process has been updated, honed and developed over a great many years by courts and lawyers and there is considerable certainty over how the spouses or partners should end up, in terms of sharing money and property.

Dogs – and all pets, but let’s stick to our four-legged friends – are PROPERTY. Just let that sink in, as those patronising posters on Facebook phrase it when they want to you agree with some inanity they are obsessed about. By property, I mean that they are not children or humans. If there is a dispute over who gets the kids, that is resolved by the sheriff at court deciding what is best for the child or children, not primarily the wishes of the parents and not according to who pays more to support or house them. The kids are treated as humans and legal parties in terms of where they will live. But dogs – they are THINGS. Living, intelligent, loyal, lovely yes. But still, they are only objects, legally speaking.  

As such, pets conform to most of the usual property rules. Just like inanimate objects e.g. a car or a set of golf clubs, if one partner brought them into the marriage i.e. owned them before on his or her own, then they can be retained as personal property and do not fall into the joint ownership pool. On the other hand, if one partner gave the dog to the other as a gift of any sort, then sole ownership resides with the person to whom the gift was given. It is perhaps worth saying here that affection and familiarity are not grounds for claiming ownership or a share of it. The dog is what Scottish law calls a corporeal moveable and has no choice in who owns it. It can get worse - if you have two dogs, one of them your sole property, the other shared with your ex,  you may lose both if they for practical purposes cannot live apart from each other. However, there may be a back door way of claiming the dog, if the children are closely attached to it (very likely) and you are able to make a good case for having the children stay with you. 

That all said (here we go…..) judges and sheriffs are only human, and perhaps they themselves are pet owners or dog lovers. Part of a contested court case nowadays involves case management hearings which are informal meetings presided over by the sheriff to see what can be resolved to let the divorce progress as efficiently and painlessly as possible. The judge will almost certainly let parties vent their wishes complaints and fears, as well as hearing how much they love the dog and how much he/she/it loves him/her (must be exhausting, I am glad I am not a sheriff). 

One club in the judicial golf bag is the attempt to get parties to reach a deal by compromise, and shared pet ownership is now a thing. Mondays to Thursdays with “Dad”, the rest with “Mum”. And frankly, as the dog is an item of property, there is nothing illogical about horse-trading (dog-trading?) to get a deal that involves giving up other claims to concentrate on pet time, if that works.

Let me throw in at this point the idea of a pre-nup, otherwise known as prevention being better than cure. Formal property/financial agreements made and signed at the beginning of a relationship have never really caught on in Scotland or the UK though they are not far off universal in the USA. But by agreeing on terms before things go wrong it may be possible to head off that world war occurring. It is not a panacea as Scottish law still takes account of the financial position on separation as a relevant basis for adjudging share of goods, but the pre-nup may be a powerful factor in retaining or recovering a contested dog.

So as the saying goes, A Dog Is For Life. But family law may sadly have something different to offer.

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