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In The Best Interests of The Animals

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What happens to the family pet on divorce? Vanessa Duff (Mitchell), Senior Associate at Withers and Fiona Wong, Associate at Withers discuss recent Court rulings

Around one in four divorces now involve a dispute over an animal and things can get messy, as the high-profile wrangle between Jennifer Aniston and her former husband Justin Theroux over their four dogs has shown.

In the unfortunate event of a ‘pet custody battle,’ what would the Court decide, and on what basis? Are pets to be treated like children, with decisions being made in the best interests or welfare of the animal, or should they be viewed as a chattel, like a car or a computer?

In Hong Kong, there is yet to be any case law dealing with the ownership of pets on divorce. Concepts of custody, care and control and access only relate to a child; a pet is an asset and treated as the property of its owner. If the pet is a dog, then it may only legally belong (and be registered with the AFCD) to one individual; joint legal ownership of a dog is not allowed.

Overseas, the pet has often been treated as personal property. In England, the Court has looked at who purchased and financially maintained the pet. That was the focus, rather than on the party who spent more time with the pet, or who was more able (and available) to attend to its needs. However, animals are soon to be recognised as sentient beings within English law, with greater priority being given to their welfare. This may mean that going forward, the English Court will look at what would be in the best interests of the animal as a whole, and make orders accordingly.

New York State is shortly set to pass a bill which will allow the Court to rule on the possession of pets, considering the ‘best interests’ of the animal, and making orders more akin to those that would be made with respect to children. Judges will be able to grant ‘shared custody’ and ownership of the animal, or visitation rights. In Singapore, Court rulings are already a welfare consideration with decisions being made in the best interests of the animal.

To avoid emotional disputes, many couples now sign a ‘pet-nup’ – a contractual agreement which sets out what would happen to their pet should they part ways. A ‘pet-nup’ should include who the pet will live with, what contact it will have with the other party, and who will pay for its upkeep/ vet bills.

Such an agreement can be entered into at any time before or after marriage, or as part of a pre- or postnuptial agreement which deals with other financial arrangements in the event of a divorce. Signing up to this specially created document to plan for your pets’ futures can help avoid heartache should your relationship come to an end.

Contact the writers: Vanessa Duff (Mitchell) at 3711 1698, [email protected] Fiona Wong at 3711 1729, [email protected]. Withers, 30/F United Centre, 95 Queensway, Admiralty, 3711 1600, www.withersworldwide.com.

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