Dogs after divorce – are we barking up the wrong tree?

As one of those people with a phone covered in dog pictures (front and back), when a client asks me what happens to the dog following separation, I am fully invested in why that’s so important.  

It is often the question that creeps in at the end of a meeting, asked with a quiet voice and expectant look. Some people worry that this question is irrelevant or less important, but for dog owners it is often the first question on their mind.

Australia is ahead of the game in recognising the complexities of modern family dynamics and that decisions on pets should form part of an outcome upon the breakdown of a relationship. The Family Law Amendment Act 2024 brought about a raft of changes to family cases in Australia, aimed at better understanding of the emotional significance of pets in family cases. The key changes include a consideration of pets as companion animals, how the animal should be cared for and assigning ownership of a pet to one person, including the impact of family violence or abuse as factor in that decision.  

Interestingly, the changes in Australia do not permit the joint care of pets and instead favours a pet having one owner. What the changes in Australia provide is a clear basis for family lawyers to advocate for their clients in disagreements on arrangements for a pet. The sad reality is that the law in Scotland does not specifically consider what is best for the dog (or other pet) in question after a divorce or relationship breakdown, or the emotional significance of pets to those involved. 

There is usually a common objective that the dog is well looked after whoever it stays with, but that can lead to a heart-breaking outcome for one person unless an agreement can be brokered to share care. The decision on who keeps the dog is often more binary than a decision on care arrangements for children, where parental rights and responsibilities form part of the outcome.

How do I sort out an arrangement for my dog if I separate?

Clear communication is key. First, be as realistic as you possibly can about how a care arrangement of a dog will look and consider if the dog is more attached to one of you. You can make promises around the dog being looked after by each other if, for example, you go on holiday, but bear in mind that life might move on for either one of you and in a way that might make this plan more complicated. The shift in Australia is towards assigning ownership of a dog to one person, but that does not mean that you cannot agree to share an arrangement if that works on a practical basis.

Write down what you agree and better still, ask a lawyer to draft the agreement as a contract between you. Think about including provision in the contract on how you will share daycare costs and vet bills. You can also include in the contract how you intend to communicate on issues that arise and if anything needs to change. There are limits to how far you may be able to enforce such an agreement beyond the payment provisions, but if what is set out is agreed between you the expectation is that you are both prepared to adhere to what you have signed up to.

What if we can’t agree?

This is where things become difficult for dog owners. Dogs are treated as property in Scotland i.e. objects. If there is a dispute over a dog, an application needs to be made to the court for delivery of the dog and there will need to be proof of ownership, or evidence of how the dog was acquired, which is often not available for dog owners. In some other countries, people will resolve the issue of who keeps the dog by agreeing to make sealed bids – the highest bid wins. On either basis, what is best for the dog, or the family is not always the key consideration, even though it is obvious that it should be.  

Where there is a lack of clear legal basis to address the emotional significance of pets to a family, the onus is on us family lawyers to come up with better outcomes for dog (and other pet) owners than the push and pull of who “wins”. We need to recognise that this is an important issue for dog owners and families, and that there are many creative ways to reach arrangements in a kind and sensitive way that keeps the interests of our clients and the dog at heart. 

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