“Animals are reliable, full of love, true in their affections, predictable in their actions, grateful and loyal Difficult standards for people to live up to”
- Alfred. A. Montapert.
The process of divorce can be painful. An already emotionally taxing period is oftentimes exacerbated by the consequences of the decision to separate; the division of joint assets and the severing of various threads that previously connected a couple’s life, not least of which may concern arrangements for the family pet(s).
Custody disputes involving pets are becoming increasingly common. Globally, courts are being confronted by the consequences of laws which fail to give a considered approach as to what happens to family pets upon their owners divorce. As an apparent response, laws are developing in various jurisdictions addressing the issue with greater nuance. Questions of custody and access rights are being tackled whilst prioritising the welfare of an animal companion.
In Hong Kong, however, there is no law governing custody (or access) rights for pets. In a divorce, they are considered in the same way as property, like a car or a couch. There is no nuanced (or any) consideration of what order would be in the pet’s best interests.
The Law in Other Jurisdictions
In Singapore, pets are legally regarded as property; there is also no legislation governing how their ownership is determined upon divorce. The case of Tan Huey Kuan (alias Chen Huijuan) v Tan Kok Chye, and another  3 SLR 960 demonstrates that the Singaporean Courts have begun considering the best interests of the animal in determining the issue.
There, a divorcing couple who had jointly adopted (and jointly owned) a dog (Sasha) could not agree on which party should care for her upon their separation. The court considered the following (§7):
- Who had taken care of Sasha all along?
- Who was closer/more attached to Sasha?
- Who was Sasha more attached to?
- Who was better able to take care of Sasha and attend to her needs?
- What was Sasha’s home environment going to be like?
- What should be done in Sasha’s overall best interests?
The court ultimately found in favour of the wife and held that (amongst other factors) she was best placed to “provide a conducive loving environment for Sasha.” (§8).
In New York, Senate Bill S4248 will change the law such that pets will receive the same rights as children in custody matters. A pet’s best interests will be prioritised when awarding possession in divorce or separation proceedings. Factors that will be considered by a New York court include (but are not limited to):
- The emotional ties and relationships between the pet and the owners, siblings, family and household members, or other members
- The owners’ capacity to provide a safe home and adequate food, clothing, and medical care
- The health needs of the pet
- The mental and physical health of the owners
- The presence of domestic violence in the home
This would mirror the approach already taken in various states in the US, including Alaska, California, and Illinois.
The above is contrasted with the approach in Canada where there are no laws specifically governing the care and custody of pets and they are treated as personal property. In the Queen’s Bench (Saskatoon) decision of Henderson v Henderson, 2016 SKQB 282 (an application for “interim possession of two dogs”) (§3) Judge Danyliuk stated:
“[§2] Dogs are wonderful creatures…[but at] law, it is property, a domesticated animal that is owned. At law it enjoys no familial rights…[§23] I say this cognizant that many dog owners… treat the family dog not as property but as family…But that choice does not alter the law that pets are property…
[§44] I am not disposed to make an interim order of any description…these parties had other personal property…Am I to make an order that one party have interim possession of (for example) the family butter knives but, due to a deep attachment to both butter and those knives, order that the other party have limited access to those knives for 1.5 hours per week to butter his or her toast? A somewhat ridiculous example, to be sure, but one that is raised in response to what I see as a somewhat ridiculous application.”
The Judge emphasised that the ultimate result of any further litigation could simply be an order that the dogs would be sold (if the court could not decide with whom they should go) and the proceeds of such a sale then split between the parties (§41). This judgment perhaps reinforced upon the parties that their energies would be better spent settling the matter outside of court.
Preventing Disputes: Pet-nups
As Hong Kong’s laws have yet to develop to a stage comparable to New York or Singapore, couples may wish to explore the possibility of a “pet-nup”. This is an agreement that governs various issues related to the family pet (custody, access schedules, how costs (e.g., veterinary bills) may be apportioned) if a couple were to separate. The benefit of a pet-nup” (which could be done before, during a marriage, or even after separating) is that it could be made as detailed or nuanced as the parties wish, more so than any order a court could make bearing in mind the current state of Hong Kong law.
Pets are often an integral part of a family; they are also extremely vulnerable. In the event of a divorce, what’s best for their welfare and needs going forward should be thoughtfully considered. If parties are unable to agree arrangements upon separation, it is hoped that the Hong Kong courts can soon develop a way to address the best interests of a pet upon divorce as other jurisdictions in the world are beginning to do. The above considerations implemented elsewhere, such as in Singapore and New York, could be a helpful starting point for such an analysis.