In the realm of family law, the division of assets during a separation or divorce can be a complex and emotionally charged process. Among the many considerations, the fate of beloved pets often emerges as a contentious issue. In Auckland, pets are legally regarded as personal property, similar to furniture or vehicles, rather than family members. This classification can lead to disputes over pet custody and can quickly become contentious and emotionally charged during separations or divorces. Pet prenups offer a solution by allowing couples to establish clear guidelines for caring for and custody of their pets during a breakup.
Prenuptial agreements have long been the gold standard for safeguarding assets during separation or divorce. Pet prenup provisions can specify the living arrangements for each pet or outline shared custody plans. They can cover various aspects, including who will make medical decisions, who will be responsible for veterinary care and insurance costs and how everyday care will be managed. As pets increasingly become cherished family members, owners recognize the importance of establishing legal arrangements to protect their beloved companions in case of relationship breakdowns. The rise of pet prenups reflects society’s evolving attitudes towards pets and their status as valued members of our households.
In Carvalho v. Verma, 2024 ONSC 1183, Justice Stewart said:
“Dogs are personal property much like other chattels (albeit indivisible), even when purchased during the course of a relationship. The question is one of ownership, not who wants the dog more, who loves the dog more or who would be the best owner.”
This approach can be disheartening for pet owners who view their pets as family members. The emotional bond between humans and their pets is often deep and significant, yet the legal system does not currently reflect this reality. As a result, disputes over pet custody can become highly contentious, with each party striving to prove ownership based on financial and caregiving contributions.
In the case of Coates v. Dickson, 2021 ONSC 992, the court established a set of factors that may help determine pet ownership during and after a separation or divorce. Where two persons contest the ownership of an animal, the court will consider the following factors, among other things:
- Whether the animal was owned or possessed by one of the people before their relationship began;
- Any express or implied agreement as to ownership, made either at the time the animal was acquired or after;
- The nature of the relationship between the people contesting ownership at the time the animal was first acquired;
- Who purchased and/or raised the animal;
- Who exercised care and control of the animal;
- Who bore the burden of the care and comfort of the animal;
- Who paid for the expenses related to the animal’s upkeep;
- Whether at any point the animal was gifted by the original owner to the other person;
- What happened to the animal after the relationship between the litigants changed; and
- Any other indicia of ownership, or evidence of agreements, relevant to who has or should have ownership of the animal.
Given the complexities surrounding pet custody, prenuptial agreements can be an effective tool for couples to outline the terms of pet ownership and care in the event of a separation or divorce. A well-drafted prenup can specify who will retain custody of the pet, outline visitation rights, and establish financial responsibilities for the pet’s care.
In Auckland, prenuptial agreements are legally binding as long as they meet certain requirements. Both parties must enter the agreement voluntarily, with a full understanding of its terms, and without any undue influence or coercion. Additionally, each party should have independent legal advice to ensure that the agreement is fair and enforceable. Including provisions for pet custody in a prenup can help prevent disputes and provide clarity in the event of a separation. It allows couples to make decisions about their pets’ future while they are still on amicable terms, reducing the likelihood of contentious legal battles later on.
As the legal landscape evolves, it is essential for pet owners to stay informed about their rights and options regarding pet custody. While Auckland currently treats pets as personal property, recent changes in B.C.’s family law suggest a growing recognition of the unique role pets play in our lives. By incorporating pet custody provisions into prenuptial agreements, couples can proactively address potential disputes and ensure that their beloved pets are cared for in the best possible way.
For those navigating the complexities of separation or divorce, consulting with an experienced family law lawyer can provide valuable guidance and support. Understanding the legal framework and exploring options like prenuptial agreements can help protect both your interests and the well-being of your furry companions.
This blog post was written by Alison Boyce, Practice Lead of the Family Law team. She can be reached at 613-566-2081 or at [email protected].
