In a country of animal lovers, our office at Johnson Legal is no exception. We are a dog friendly workplace with a resident dachshund and most of the staff have beloved furry friends at home.
In October 2020, we published a blog post about pet ownership for separating couples. We explained that Scottish Law considers your adored pet to be an item of property. There is no automatic presumption of shared ownership of a pet, even between a married couple. Proving ownership can be challenging, as one couple recently discovered when they decided to bring their dispute before the court.
Ms Smith and Mr Duncan purchased a dog called Martha in June 2019 when they were living together. They were not married. When they split up, Martha remained with Mr Duncan and Ms Smith took the matter to court to have Martha returned to her.
Ms Smith signed a contract of ownership for Martha when she was bought for the price of £1,200 from a breeder. Both parties paid £600 each but Mr Duncan did not sign the contract. Mr Duncan told the court that Ms Smith usually handled their paperwork. The breeder told the court that she thought Martha was going into the household, and not to be owned by a particular individual.
During their relationship, Ms Smith appeared to have met most the costs for Martha although the court reasoned these were “jointly met” for a “family pet”.
The parties sadly split up about a year after Martha was purchased, and she has lived with Mr Duncan ever since.
The sheriff appears to have heard evidence from numerous witnesses including a “dog behaviouralist” and a clinical animal behaviourist. The parties lodged over 50 separate documents with the court, including videos of Martha. Ultimately the sheriff decided Martha should continue to live with Mr Duncan.
Ms Smith took the case to appeal. The Sheriff Appeal Court has been unable to consider the appeal as yet because of the brief summary of the case prepared by the original sheriff. The sheriff didn’t sufficiently explain her position on the contract of Martha’s ownership and didn’t discuss the evidence she heard from witnesses, including the experts brought into court by the parties. She didn’t explain how she applied the law of selling what is known as “corporeal moveable property”, which is almost any physical object which isn’t land or buildings.
For this reason, the Sheriff Appeal Court have sent the case back to the original sheriff for a supplementary report. The matter will then return to the Sheriff Appeal Court to consider the decision made by the sheriff.
Our advice hasn’t changed. If you get a pet with your partner or spouse, just remember that if you do split up then the issue of ownership can arise. Think about a written agreement that can protect everyone in these circumstances.
Entering into an agreement can be done at any stage of the relationship about any matter which could lead to a dispute in future. As with all written agreements, parties should think carefully about what they want to confirm in writing. The terms should be concise and unambiguous. Solicitors are experienced in drafting such documents and it would be of great advantage to consult a solicitor in order to assist with the drafting of any written agreement. The drafting of a “pet-nup” may seem trivial at the time but this could help parties later on when there’s many difficult decisions to be made all at once.