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?

Marie Claire (South Africa) - - CONTENTS - WORDS ZODWA KU­MALO-VALEN­TINE

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.

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