Briefing: Family law and what happens when pets get caught in relationship breakdown

When relationships break down, what happens to pets caught in the middle, asks Karen Wylie?

There is growing recognition across the UK that the legal treatment of pets is outdated. Society increasingly regards animals as sentient beings rather than mere possessions, and animal welfare legislation reflects this, yet family law has not kept pace.

In Scotland, pets are classed as corporeal moveable property – no different from a household object such as a chair or a kettle. In any dispute about the ownership of pets between a separating couple, the courts are not required to consider the animal’s welfare, who cared for the animal, the relationship with any children in the family or whether any domestic abuse has occurred.

The position is similar in England and Wales where animals are regarded as ‘chattels’. Naturally the expectation is that the separating couples will try to resolve these disputes amicably. While mediation or negotiation may resolve matters for some, for others some disputes require litigation. 

Questions of ownership

For married couples, domestic animals are excluded from the presumption of equal sharing of household goods. So, depending on the circumstances, the owner would ordinarily be the person who purchased the animal. Where there is a dispute about ownership of the pet after separation, in theory a party could seek a transfer of the pet under Section 8(1)(aa) of the Family Law (Scotland) Act 1985, but welfare still plays no role.

For cohabitees, pets are also excluded from the statutory definition of household goods in the 2006 Act, meaning the usual presumption of equal shares does not apply. Because pets are treated as mere property, courts consider only limited factors such as who bought the animal, who is named on records and who paid expenses (eg Smith v Duncan [2022] SAC (Civ) 16 and [2025] SAC (Civ) 27 ELG-SM2-20) with no regard to welfare, emotional bonds or the ability of a party to care for the animal. If jointly owned, in the absence of agreement, the only court remedy is division and sale, a novel, untested and unsatisfactory option for pets.

Cases involving animals can be emotive and difficult to resolve, which is not helped by the current legal position. It can cost parties many thousands of pounds to litigate these matters, well in excess of what the animal is worth in monetary terms. Newspaper reports regarding the Smith v Duncan case suggest Ms Smith’s legal fees were around £40,000, which illustrates the importance of these cases to parties but also how difficult they can be to resolve.

Calling for reform

An independent Working Group on Pets in Divorce and Separation was established in England and Wales in 2024 to address similar issues across the border. The Working Group is not proposing radical change but a simple, workable list of criteria that the courts must have regard to, to bring the law into line with contemporary family dynamics. They argue that reform in this area would promote fairness, reduce conflict and better protect the welfare of pets.

While no reform has taken place as yet, there has been a case where a dog’s welfare has been a factor in a judgment about financial remedies which included the issue of ownership of a family pet. In FI v DO [2024] EWFC 384, the court was asked to decide which spouse should keep the family dog after their separation. Although the judge acknowledged that the dog was legally a ‘chattel’, she did consider the dog’s welfare in making the decision, marking a subtle shift in approach in England and Wales. 

The judge refused to order shared care of the pet and instead ruled the dog should remain with the wife and children, noting that family law is not designed to manage ongoing pet‑sharing arrangements in the way it does for children. The case illustrates a more nuanced, welfare‑aware approach despite pets still being treated as property in law.

 In July 2025, the Working Group surveyed family lawyers across the UK. The survey found that only 7% of solicitors had never encountered a pet dispute; 76% said the lack of legal guidance makes cases harder to resolve; and 98% believed the primary caregiver should matter, though current law does not reflect this.

International approaches

Reforms in British Columbia (Canada), Australia and Spain adopt a more relational approach to pet disputes. Pets or ‘companion animals’ are clearly defined in the legislation in these jurisdictions. Pets continue to be classified as property under British Columbia’s legislation and under Australian family law; however, pets are recognised as having an elevated status above that of property. 

In any dispute, the courts consider factors such as how the animal was acquired; who cares and pays for it; any history or risk of violence; emotional attachments; and the ability of a party to care for the animal in the future. These reforms provide a clear statutory framework that supports earlier resolution and reduces litigation. Importantly, these jurisdictions do not allow shared ownership orders, supported by animal behaviourists.

Given international developments, there is a case that Scotland should consider adopting a similar model, recognising pets as more than property. There is some recognition that the present law in Scotland is unsatisfactory. 

The research shows that there is a link between abuse of animals and domestic abuse (for example, see the National Centre for Domestic Abuse, Report 1, October 2025). It is of note that the Scottish Law Commission sought views in October 2024 on an order regulating the care of and responsibility for a pet, or for the delivery of a pet, in its Discussion Paper on Civil Remedies for Domestic Abuse (Discussion Paper No.178, p119). However, we are significantly behind other jurisdictions in this area.

Karen Wylie is legal director at Morton Fraser MacRoberts LLP