Custody of the pet?

Pets and divorce – what does the law say?

We’ve all heard of child custody battles, but pet custody? In the maelstrom of divorce proceedings, the living arrangements of the cat or dog can seem like a trivial concern. Working out complex financial settlements and resolving the highly emotional subject of child custody can often overshadow less critical decisions such as who keeps the family pet. But according to a UK report by Direct Line Pet Insurance, the biggest bone of contention in a quarter of all divorces is just that – Rover or Kitty.

When a pet has been part of the family for a significant period of time, where it winds up can spark heated and even heart-wrenching debate. If an animal was acquired after a couple set up home together, it is likely to be viewed as a shared pet, belonging neither to one nor the other spouse. One person may regularly feed the pet, but the other may exercise it more. The decision may be easily made if one spouse is remaining in the matrimonial home while the other moves out, possibly to accommodation where pets are not permitted. Or one spouse may have a job that entails extensive travel and keeping a pet is not practical. But custody of a pet in divorce proceedings is not always that straightforward. We know of a couple who, when their relationship ended, decided to share custody of the ridgeback they bought together as a puppy. The dog spends half the week in each home. Conveniently, they live near each other, but this solution is not always feasible, nor is everyone willing to see that much of their ex if there are no children to consider. What does South African law say about pets in divorce proceedings?

Personal property

In South Africa, pets are considered personal property, similar to other possessions like vehicles or furniture. Consequently, the legal owner, usually the party who purchased the pet, retains rights, regardless of emotional attachments or the pet’s bond with the other party. Where that leaves the pet purchased – or rescued – jointly by a couple is unclear.

In Spain, a law came into effect in 2022 recognising pets as “living, sentient beings” for the first time, and not mere objects. However, unlike Spain, France, Germany, Switzerland, Austria and Portugal, or other jurisdictions where more comprehensive provisions regarding pet care and contact exist, South African law is vague. 

Enter the pet-nup

Some animal rights activists are calling for South African legislation to make provision for animal rights. However, it is unlikely that promulgation of such legislation will take place any time soon. Since a legal framework is lacking, an effective way to avoid an expensive dispute around access to a pet following a divorce is for spouses to conclude a “pet-nup” or pet settlement agreement when they acquire a pet. Like a pre-nup, it sets out the arrangements for the pet’s welfare in the event of divorce or relationship breakdown. This would seem to be a sensible step to take as responbible pet owners. However, in the excitement of bringing home that boisterous ball of fur destined to take its place at the heart (and in the hearts) of the family, a sobering reminder that the relationship might not last is not always welcome or even considered. However, the Direct Line report also showed that some pet owners use their animal to take vengeance on a former spouse. A quarter would give their animal to a shelter or rescue centre, one in six would sell it, and a similar figure would consider having it put down. So perhaps breeders and shelters should insist that couples acquiring a new pet have appropriate plans in place should the worst (in relationship terms) happen. Shelters regularly do home checks when rehoming a rescue animal; why not ask for a pet settlement agreement as well?!

Pets in the divorce settlement

Parties in divorce proceedings can either integrate the wellbeing of the pet into the divorce settlement or come to an agreement on the basis of the pet-nup, if one exists. The settlement agreement can prioritise factors such as primary caregiving responsibilities, emotional attachment, financial responsibilities and the pet’s overall stability and routine. 

Courts in South Africa typically adhere to the principle of pets as property. However, there’s a discernible shift in some judicial circles towards scrutinising pet care and contact arrangements more closely. While enforcement of visitation agreements for divorced pet owners varies, courts are increasingly inclined to consider custody arrangements in the best interest of the animal. Especially in cases involving children, maintaining the pet’s presence in the family home may be deemed beneficial for both the children and the pet’s wellbeing.

Pet-nups specifically addressing pet care and contact can potentially influence court decisions. However, the primary factor taken into account is the legal ownership of the pet. Although “the best interest of the pet” is not a principle formally recognised in South African law, it has been applied successfully in other jurisdictions. Therefore, it is essential for parties involved in divorce proceedings to prioritise the wellbeing and interests of their pets when drafting settlement agreements.

We can help

At, Simon Dippenaar & Associates Inc., we are passionate about the law. Our family lawyers and divorce attorneys offer expert legal advice with complete client confidentiality. Our expertise encompasses family and divorce law, and a comprehensive range of legal services. Contact Simon on 086 099 5146 or email sdippenaar@sdlaw.co.za with any questions about pre-nups, pet-nups, divorce, or how to resolve the sharing of pets.

Further reading:

• Rise of the pet-nup – I’m taking the dog!
• Who gets the dog after divorce? Spain starts shared custody
• Wife getting divorced wants R5600 extra maintenance for dogs

Divorce Attorney Cape Town

http://divorceattorneycapetown.co.za/

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