Pet Prenups: Should furry family members no longer be classed as property?

Pets magazine Editor Marie Carter explores exactly who is in charge

(elenaleonova/iStock)

Do we really own our pets, or do they own us? What is the psychology of pet ownership? Is it a mutually dependent relationship where both sides imagine they own the other? Just who is training whom? By teaching our dogs to sit and stay we’re training them, but aren’t they also training us when they plead successfully for a biscuit or lead us to the fridge for ham? It’s "cute" but it’s still a form of training as signified by the age-old bond of pet and owner - or should that be human and owner? As pets, particularly dogs, are increasingly given a form of "personhood" in our lives, is it right that they’re still regarded in law as our "property"?

Pets do have a form of personhood in that they can exhibit individual behavior and create relationships. They can actively shape people's connections with them and with other humans. At the positive end, they can teach those with learning difficulties or those who are lonely to engage and interact with others, thereby improving mental health. Pets can also cause jealousy if they choose to attach more to one person than another. Like us, animals make choices.

There is a special connection between people and pets that is largely intangible, but nevertheless complete. From the moment we bring a pet home we’re responsible for another life, for its sustenance, health and wellbeing. We buy a bed, food and toys and in the case of puppies, train them to do their business outside and away from our carpets and upholstery.

Bearing all this in mind, it might seem anachronistic that dogs are still classified as property in law. With the advent of so-called "Pet Nup" agreements, which like prenuptial agreements come into play in divorces, there is a move towards giving them a legal form of personhood. This recalibration of how we regard our pets as family members and how we position them in our family structure is having a profound effect on their status. Their legal classification as property is now in the main simply an outdated legal status.

Deborah Rook, an expert in animal law and Principal Lecturer at Northumbria Law School, Newcastle, has called for a revolution in how so-called "pet-custody" decisions are made in divorce cases. Many divorcing couples come to a mutually acceptable agreement over where the family dog or cat will reside following a relationship breakdown, however without a legally binding agreement, stalemate may ensue.

Ms Rook has called for a change in the law governing pet custody decisions. In her paper – ‘Who Gets Charlie? The Emergence of Pet Custody Disputes in Family Law’ - she says the law “needs to adapt and apply more suitable rules in determining pet residence disputes.” She wants to persuade the courts in England and Wales to take a more flexible approach that does not rely solely on the application of pure property law principles. Some courts in the US and Israel have taken an approach that applies "best interests of the animal" test. The paper, while making it clear that pets are not the same as children, considers the existing "best interest of the child" test to support and justify a new approach to resolving pet custody disputes.

Mrs Rook explains: "More and more separating couples with pets are seeking legal advice and want to fight for custody of their pet when their relationship breaks down.

"But pet custody is not discussed at law schools when students are learning about family law and there is nothing in student textbooks. It’s an issue that is becoming more prominent - not just among celebrities but for other people - and I think the current law is inadequate to decide cases fairly."

Animal charity Blue Cross has recommended that pet owners should consider entering into a Pet Nup before getting married. The charity has recently partnered with divorce lawyers Lloyd Platt & Company in an attempt to stop the numbers of pets getting caught up in marital disputes. Mrs Rook sees this development as further evidence that the law needs to adapt and apply more suitable rules in determining pet residence disputes. She is now looking to speak to people who are in the process of fighting for custody of their pet or who have been involved in a pet custody dispute in the past to help build on her research.

"It is the emotional bond between the pet and at least one of its human carers that triggers the dispute. The dispute cannot be resolved by simply buying another pet of the same breed and type. A car, or a similar possession is just a thing, it can be replaced but not so a family pet."

Science has proven that our dogs at least do indeed love us and their devotion is not just avaricious cupboard love. When a dog sees its owner, the so-called "cuddle chemical" oxytocin is released in its brain. A recent series of studies in the US prove that dogs experience emotions like love and attachment.

Dogs are the only species that, like a human child, runs to its human when it is frightened, anxious or just pleased to see us. It is also the only animal, aside from other humans, that actively seeks out eye contact with people, and truly wants to be with us, unlike the aloof, still wild-at-heart cat. I anticipate that it will only be a matter of time before dogs at least are given the ‘personhood’ they truly deserve and our mutually dependent relationship will finally be classified correctly in law.

Marie Carter is the Editor and Publisher of Pets Magazine. Follow Pets Magazine on Twitter or Facebook..