Who gets the dog?
A NEW CUSTODIAL BATTLEGROUND HAS BEEN DECLARED, BUT WILL SOUTH AFRICAN COURTS MAKE TIME FOR COUPLES WHO FIGHT OVER THEIR PETS?
charlie was the centre of the lives of Jo’burg restaurateur Karin Orzol and her partner, who were living together but had kept their separate apartments. Outings were planned around being able to take Charlie along; Charlie fell asleep warmed between the bodies of his adopters; after-work drinks with friends were cut short because, well, Charlie was waiting to be fed, watered. And walked.The chocolate-brown dachshund with an endearing face and playful personality was part of the family, evident in the most treasured family pics. It was perfect – until, a few years down the line, the relationship soured and the couple broke up. Furniture had to be shared out, photo albums had to be divided snap by snap and the saddest decision had to be made: who was going to get Charlie?
’It’s a good thing they discovered the relationship wasn’t going to work out before they had children,’ their friends would murmur, sharing their commiserations and sense of relief when referring to the split. But with the growing number of pooch parlours, pet-sitting services, spas and pet clothing stores popping up all over country, it seems four legs are just as prized and precious as two. Cape Town family law attorney Bertus Preller says, ‘Although loved and regarded as a part of the family unit, there is no law of custody or care of pets.
Spouses who divorce or partners who separate can argue about who keeps the family dog in the same way they argue over who keeps the sofa. It can be an expensive process, and one as emotional as dealing with where the children live.’ Instead, he says couples are turning to antenuptial agreements to include pets when dealing with divorce and who gets what.
Orzol says her partner bought Charlie for her as a gift but when it came to discussions about who was going to keep him, her ex denied having done so.And in the light of their messy break-up, she knew she had to walk away from her beloved pet and asked for visitation rights instead. The dachshund would stay with her ex and Orzol would pick him up for dates, walks and overnight visits. ‘It was tricky but I love Charlie and I know he loves me. He didn’t deserve to suffer because we were no longer together,’ says Orzol, who doesn’t see as much of Charlie as she used to, now that she and her ex have formed new relationships. She adds that she only found out later that Charlie was a source of tension in her ex’s new relationship. The new girlfriend thought Orzol was using the dog as an excuse to keep seeing her ex.
Says Tersia de Kock, a Cape Town social worker in private practice who’s also a dog trainer and behavioural practitioner, ‘I have seen couples go to enormous trouble to drop off and fetch dogs so that the ex can have access to them. This can extend the adjustment period and may not always be the most realistic alternative.’
Meanwhile, in celebville, when Jake Gyllenhaal and Kirsten Dunst split up after a two-year relationship, they went to court to fight about
‘Splitting up a family does have a negative impact on an animal’
custody of their German shepherd, Atticus. That was back in 2002. Gyllenhaal won but the courts decided Dunst was also entitled to see Atticus. One wonders whether Dunst still dutifully visits him, buys her share of the dog food and agreed to dog-sit when Gyllenhaal wanted to go out of town with Sports Illustrated model Alyssa Miller. Actress Jennifer Love Hewitt and fiancé Ross McCall ended their four-year relationship and both fought to keep their boxer, Mona. Hewitt got custody and McCall got visitation rights. According to The Hollywood Reporter, Kevin Federline sued Britney Spears for custody of their pets in 2007, and Tiger Woods and ex-wife Elin Nordegren reportedly both sought custody of the dogs in 2009. When their marriage ended after less than six months, Drew Barrymore and Tom Green fought over labrador-chow Flossie, whose custody was awarded to Barrymore.
In his blog, Cape Town divorce lawyer Peter Baker wrote that in South Africa, couples do not often fight about animals when going through divorce. In fact, only in one out of 10 divorces do the couples argue about their pets. And in those cases the parties are usually fairly wealthy or have no children. Tersia de Kock says: ‘Most of my clients have at some stage described their dogs as being like a child in the house. I think single people especially, or people without children, often regard their pets as kids. People have the need to nurture, to take care of something or someone, and this need is partially met via our pets.’
Although pet-custody battles may be on the rise in Hollywood, the same can’t be said for couples with limited resources who appear before South African judges. Preller says one of his peers dealt with a matter where a judge was not prepared to make a court order stipulating that a couple’s dog spend alternate weeks with each spouse. ‘The court was reluctant to make an order that would [encourage] couples to approach the court on trivial matters… and left it to the couple to reach an agreement between themselves.’
Preller adds, ‘It’s impossible not to become attached to a pet that has become part of the family, and whether you’ve been married or living together, splitting up a family does have a negative impact on an animal.’ In fact, De Kock says she is often called for behavioural consultations with dog owners where divorce or separation has occurred. Changes in routine, as well as being moved to a smaller space, can adversely affect a pet that was accustomed to being walked at certain times or being played with regularly. ‘If the dog was used to having family members around and is suddenly left to only seeing them on weekends or not at all may lead to boredom, even causing anxiety and depression,’ she notes.
Orzol says, ‘Charlie didn’t play up at all, mainly because he stayed in the house we used to share and his routine stayed pretty much the same. I see him about once a month now and he’s always very excited to see me.’
Preller notes that although pets are considered to be ‘property’ in the eyes of the law, he is of the opinion that ‘courts may start to recognise that a person’s relationship with this particular form of “property”, known as the family parrot, dog or cat… is poles apart from a person’s relationship with other forms of property, such as the coffee pot.’
But for now, declaring and excluding your ‘assets’ from a joint estate or partnership will protect you and your pets from some of the more anguished emotional and expensive extrications.
This page, from far left Kirsten Dunst and thenpartner Jake Gyllenhaal with Atticus; Jennifer Love Hewitt and Mona; Drew Barrymore with Flossie.