Pets are often considered by their owners to be 'part of the family'. It is therefore not uncommon for me to be asked 'who will get custody' or 'can I get help in paying for...' their food, annual booster and medical expenses.
In her article, Rook advocates a new approach to resolving pet custody disputes on relationship breakdown. Rather than looking at pure ownership - in whose name is the pet registered, who paid for it and so on - the court should consider what is best for the animal. She considered reported cases from the USA and Israel to show that two distinct tests have emerged to resolve pet custody disputes: first, the application of pure property law principles and secondly, the application of a 'best interests of the animal' test.
Thankfully, I have never had a case where the court was asked to determine who got the pet. My advice to clients where this has been an issue has been based on the English court's likely apporoach being one of property law principles, even though this does not sit happily with my instinctive response that it should be what is best for the animal. Of course, the animal's welfare should always be a parting couple's overriding concern. But where there "is the emotional bond between the pet and at least one of its human carers" it can trigger a dispute. "It is the irreplaceability of this special relationship that means that the dispute cannot be resolved by simply buying another pet of the same breed and type".
Rook points out that "pet custody disputes only arise because of this emotional bond. Either both parties genuinely love their pet and both want to
keep it or one party feels this way and the other party is merely using the pet as a bargaining chip in order to get a better financial deal".
The full article can be read on the journal's website.