Posted: Monday 3 September 2012
By Leonard Mair
OK, I admit at the outset that I am a shameless carnivore (although I do also enjoy fruit and veg and pretty much anything else to emerge from Messrs Waitrose, Tesco or Sainsbury). That said, separating couples don’t tend to argue over who is going to keep the broccoli! They do however argue over who keeps the dog, cat, horse, snake, goldfish – you name it, and of course, pet sheep. When some years ago I had a case involving disputed “custody” of a pet sheep, my only thought was of mint sauce and roast potatoes. I blame all those cookery programmes…
But there is a serious side. For many families the family pet can assume an importance which may be difficult for non pet owners to fully comprehend. At a time when emotions may be stretched to the limit, it can be reassuring for some to know that Fido, faithful as ever, will still be in their life – uncomplaining, loyal, obedient and affectionate and all of that. “She may have taken the kids and the house but she is not getting the dog…”
But who exactly owns Fido? The reality is that in legal terms Fido has no greater status than a chest of drawers, the family car, a photograph album or anything else which is essentially just an object. Lawspeak calls such things “moveable property”. So the question then arising on divorce is whether or not that particular item of moveable property falls within the definition of “matrimonial property”. This is a key definition because it is the net value of the matrimonial property (which isn’t necessarily all of the property owned by the couple) which falls to be divided fairly on divorce.
“Matrimonial property” is defined by the Family Law (Scotland) Act 1985 as follows:
“all the property belonging to the parties or either of them at the (date of separation), which was acquired by them or him (otherwise than by way of gift or succession from a third party) –
(a) before the marriage for use by them as a family home or as furniture or plenishings for such a home; or
(b) during the marriage but before the (date of separation).”
So, if Fido was bought by either of the spouses during the marriage then he will be matrimonial property, the value of which goes into the pot and falls to be divided fairly between them. Although matrimonial property, he may nevertheless be owned by only one of the spouses and arguably therefore, that spouse would have the higher claim to ownership after divorce. If Fido was bought before the marriage, or given to one of the spouses, or inherited by one of the spouses, then he would not be matrimonial property and his future should not be in doubt.
Problems sometimes arise where the pet owned by spouse A has formed a particularly close bond with spouse B. This can be difficult because the best interests of the pet may be served by staying with spouse B notwithstanding that the pet belongs to the other spouse. This sentiment can be easily abused and can generate powerful negotiating leverage in respect of other issues (such as money!).
Pets do not feature too often in our every day cases but one of the most recurring problems we come across in the family practice is the tendency for parents in conflict to argue over who should have the family pet in order to better support their case (as they would see it) for residence of their children. “It’s my dog therefore the children should stay with me because you are not going to get it”. Fortunately this does not happen often, but when it does, it can be difficult to deal with because the line of argument is indicative of a particular way of thinking which tends not to embrace compromise or agreement. Pets should not be used as bribes! The purchase of a new puppy or foal can be a powerful influence on a young child who is being discouraged by one parent from seeing the other parent.
Sadly, pets can also be the victims of separation. Couples who can afford to keep a horse for their child while together, may find the cost prohibitive when they separate. A not uncommon issue arises with downsizing of property and the challenges faced by accommodating two dogs or pets who need space. Responsible owners will try to find a suitable alternative home for their pet. I have personal experience of this. Some years ago, having returned home from a hard day at the office, I was greeted by a magnificent but unbelievably stupid Labrador which my wife had picked up from a Scotsman ad placed by a couple who were separating and relocating to the city. This loveable but imbecilic dog was in my life for several years and seemed to spend most of his time stealing my footwear and dumping it at random points in various adjacent fields. He was good company and a survivor, and after a while people learned not to ask me why my shoes didn’t seem to match!
The bottom line is that on separation, family pets need to go somewhere and although the law may not treat animals any different to furniture, pets do have a different care regime and owners need to exercise responsible behaviour having regard to their different life circumstances! Sensitivities – particularly of children - need to be respected.
Going back to my sheep case, it would be tempting to think that the problem could have been resolved by sharing an enjoyable meal with the other party and consuming the disputed animal but clearly that pragmatic remedy would not have universal application. I have yet to try tarantula pie, and I draw the line at the oriental cook book which bore the title “One thousand ways to wok your dog”.
Note: no animals were harmed in the writing of this blog.