WHO GETS THE PETS WHEN PARTIES BREAK UP OR DIVORCE IN SOUTH AFRICA?

Natasha du Preez
25 November 2023

Getting a pet is an exciting adventure that can solidify a familial bond between partners; however, couples often fail to consider what will happen to their beloved pet if they decide to separate.

Owners of domestic animals who cohabitate should take into consideration the question of legal ownership and possession of a domestic animal if they happen to no longer live together. Pets often become like family members or even children in our homes. However, it is important to understand their classification as property in terms of South African law, as this classification will be relevant if a dispute surrounding the retention of domestic animals ever arises. It is also prudent to take into consideration that such a dispute is not one relating to the “custody” or “primary residence” of the domestic animal, but rather a dispute of the classification of rightful ownership of personal property.

HOW ARE PETS AND OWNERSHIP CLASSIFIED IN TERMS OF SOUTH AFRICAN LAW?

Concerning the legal ownership and possession of a pet, we must first establish how domestic animals are classified in South African law and how ownership of such an animal is obtained and retained.

In terms of Roman law and Roman-Dutch law, domestic animals are classified as “things,” “property,” or “legal objects”. This means that, while domestic animals enjoy legal protection under the Animals Protection Act 71 of 1962, they have no legal capacity to act in their own right nor any legal duties accrued to them. Domestic animals are, legally speaking, a possession that is owned by one person, much like a motor vehicle. Consequently, a person can have ownership and possession of a domestic animal in the following circumstances:

  • if the domestic animal is in the direct possession of a person in a controlled environment;
  • wherein a person has authority, power, and responsibility over the domestic animal; or
  • if a person in possession of a domestic animal has a clear intention of being the owner of the animal.

IF YOU AND YOUR PARTNER COHABITATE, WHO IS THE OWNER OF YOUR PET?

If you and your cohabitating partner get a pet, the party who purchased or adopted the domestic animal is classified as the owner of the domestic animal. It is worth taking into consideration that the party claiming ownership in this case must be able to substantiate this averment with documentary proof like a receipt of purchase, adoption papers, or a breeding registration certificate.

WHAT HAPPENS IF THE OWNERSHIP OF A PET CANNOT BE EASILY PROVEN?

Where ownership of a pet cannot be easily proven or you and your partner happened to adopt a domestic animal free of charge, other factors will have to be taken into account to determine ownership, such as:

  • which person’s name is listed on the domestic animal’s vet records;
  • which person’s name is the domestic animal’s microchip registered to;
  • which person registered and paid for the domestic animal’s pet insurance; and
  • which person’s bank statements do the pet’s expenses reflect on.

If the domestic animal was received by one of the parties as a gift, this can also be argued to show proof of ownership.

WHO RETAINS OWNERSHIP AND POSSESSION OF A PET WHERE PARTNERS BREAK UP OR DIVORCE?

In most cases, the owner of a domestic animal will automatically have the right to retain ownership and possession of their pet upon separation from their partner.

WHICH FACTORS ARE TAKEN INTO ACCOUNT BY THE COURT TO DETERMINE WHO RETAINS OWNERSHIP AND POSSESSION OF A PET WHERE PARTNERS BREAK UP OR DIVORCE?

If both parties feel strongly about the well-being of the domestic animal or if ownership cannot be specifically determined, the following factors must be taken into account to determine which party will retain ownership and primary possession of the pet, namely:

  • which party pays most or all of the domestic animals’ expenses;
  • which party pays most or all of the domestic animals’ medical bills or veterinary expenses;
  • which party maintains the domestic animal;
  • which party purchases toys, food, treats, and general grooming or maintenance products for the domestic animal;
  • which party is the domestic animal’s primary caretaker;
  • which party meets the fundamental needs of the domestic animal the most;
  • which party takes the domestic animal to the vet or for grooming;
  • which party spends the most time with the domestic animal;
  • which party has the closest bond to the domestic animal;
  • which party’s work schedule allows them to care for the domestic animal the most;
  • which party lives in a setting where the domestic animal will be safer;
  • which party has an appropriate environment for the domestic animal to reside in (taking into consideration a lawn, a big yard, proper fencing, and a safe environment);
  • which party resides in an environment where domestic animals are allowed;
  • which party has more space (indoors or outdoors) for the domestic animal;
  • which party does not engage in travelling from home for extended periods (if applicable);
  • which party is in a better financial position to carry the fundamental expenses of the domestic animal;
  • which party is in a better financial position to carry the medical expenses of the domestic animal;
  • which party can offer the most conducive and stable environment for the domestic animal;
  • what is in the best interests of the domestic animal; and
  • which party will uphold the best interests of the domestic animal the most.

All these factors will be carefully considered when determining who retains ownership and possession of the domestic animal when these disputes arise, as the best interests of the domestic animal must supersede the individual interests of the parties at all times.

WHAT PREVENTATIVE MEASURE IS AVAILABLE FOR COUPLES WHO WANT TO PREVENT A DISPUTE SURROUNDING THE RETENTION AND OWNERSHIP OF A PET?

Cohabitation Agreements:

As a preventative measure, cohabitating partners can enter into a written Cohabitation Agreement wherein they set out the rights of ownership and possession of their domestic animal(s) if they decide to no longer cohabitate.

Settlement Agreements:

Parties who are busy with divorce proceedings can prevent a dispute surrounding the retention and ownership of a pet by entering into a settlement agreement. Settlement agreements can help parties in setting out the retention of rights of ownership and possession of the domestic animals of each party in conjunction with the division of the remainder of the marital property or assets after the divorce has been granted.

WHICH LEGAL REMEDIES ARE AVAILABLE FOR COUPLES WHO STRUGGLE TO RESOLVE A DISPUTE SURROUNDING THE RETENTION AND OWNERSHIP OF A PET?

Couples who fail to agree on the rights of ownership and possession of the domestic animal by utilising the aforementioned remedies can request an SPCA (Society for the Prevention of Cruelty to Animals) intervention or investigation. The SPCA will investigate each respective party’s financial capacity, environmental capacity, and ability to care for the domestic animal to determine which party and environment would be best suited to meet the domestic animal’s various needs permanently.

IS SHARED RESIDENCES FOR A PET POSSIBLE AND, IF SO, ADVISABLE?

While a domestic animal can have shared residences, realistically and logistically speaking this solution is ill-advised. Before proposing this solution, ask yourself:

  • Is it justifiable for your pet to be repeatedly destabilised from their environment and continuously rotated between environments so that both parties can enjoy contact?
  • Do you want an ex-partner to be a continuous presence in your life after a breakup or divorce?
  • Is such an arrangement truly sustainable for the foreseeable future?
  • How would such an agreement be executed, both logistically and financially?
  • Most important of all, is such an agreement in the best interests of the domestic animal?

FOR LEGAL SUPPORT ON PET CUSTODY LAW IN SA, CONSULT WITH BURGER HUYSER ATTORNEYS

We all love and adore our pets. For some, they might even feel like children or family members! As such, it is always important to safeguard your pet’s best interests and well-being.

It is always advisable for cohabitating couples to give due consideration to future disputes like these by biting the bullet, having difficult conversations, and making difficult decisions that will ultimately be in the best interest of their pet in the long run.

For legal guidance and support about the rightful ownership of pets in a breakup or divorce or any disputes that might arise with pets during a divorce, contact Burger Huyser Attorneys, our experienced team of cohabitation and divorce attorneys in Gauteng, today.

DISCLAIMER: Information provided in this article does not, and is not intended to constitute legal advice. READ MORE