Dr Trudie Prinsloo is a qualified veterinarian and lawyer. In 2015, she started Legalvet services in order to provide legal advice to the animal and veterinary industries in South Africa.
We’ve teamed up with her to get insight into unique situations that only someone with her specialized experience and knowledge can answer.
This month, we asked Dr Prinsloo about what happens when pet parents split up, and you can read Dr Prinsloo’s previous guest post on the legalities on chaining your dog here.
A “Pet Custody Consultant” – have you ever heard of that? It is a person who helps couples navigate pet custody when relationships break down. And there is at least one such consultant in South Africa, believe it or not! This alone should tell you that there is an increase in disputes over pets when relationships end.
For many people, pets are members of their families, and they form close emotional bonds with them. This means that neither one of the spouses might want to give up their beloved pet when they divorce.
How does the law see pets?
In South African law pets are viewed as moveable property, much like a car. It is the same in most countries around the globe.
Legal ownership of the pet will be the determining factor if a court must decide a dispute about a pet in a divorce matter. This essentially means that whoever bought and paid for the pet is more important than who the caregiver of the pet is.
However, if there is a prenuptial agreement that specifically determines who should get the pet, the court will give effect to that.
Should couples draw up an agreement when they get a pet?
The best time to draw up an agreement about pets is before the marriage as part of the prenuptial agreement. This is also called a pet-prenuptial. However, pets may die, and families get new pets. Make sure that your prenuptial agreement makes provision for that.
Married couples who did not think about having pets initially can enter into an agreement when they decide to get a pet later. This would be a type of postnuptial agreement. Postnuptial agreements are only valid and enforceable if made an order of the court, and it is unlikely that a couple would be willing to incur such an expense when they get a new pet.
In my opinion, a written agreement, signed by both parties and which only relates to the pet or pets, will be helpful, although not strictly enforceable. It will at least prove the parties’ intentions, and if a dispute arises, it would be better than not having any agreement at all.
Couples who are not married should draw up a pet custody agreement and include it in their prenuptial agreement if they decide to marry.
What if you don’t have an agreement?
The best way to solve a divorce dispute about the pets would be to make it part of the settlement agreement. Taking the pet’s wellbeing into consideration is important. Factors to consider are:
- Is there a primary caregiver or person that spends more time with the pet?
- Is the pet more attached to one person than the other?
- Where will the parties reside after the divorce, and where would the pet be safest?
- Can both people afford to care for the pet?
- What will be the most stable environment for the pet?
Although “the best interest of the pet” is not a principle accepted in South African law yet, it has been applied in other countries. It should be considered when parties draw up settlement agreements.
Hopefully, someday pets’ status in law will be elevated to more than just ordinary moveable property.