A pet is a member of a family and by extension can be the subject of a pet custody fight in a divorce proceeding. In an attempt to lessen the heartache of a divorce proceeding and, to more pertinently, ensure a pet’s welfare post-divorce, Hong Kong couples could consider following a recent trend in the United Kingdom called “pet-nups” – a very niche trend which is essentially a pre-nuptial agreement drafted for pets.

As with any legal agreement, there is no blanket pet-nup agreement that would fit every couple and their pet. However, terms that could be included under a pet-nup could cover issues including joint custodial rights; visitation rights; and apportionment of veterinary and grooming costs. Specifically for Hong Kong, a pet-nup could include boiler-plate terms to address two contemporary pet welfare issues in Hong Kong.

Terms regarding positive duty of care of pet owner

The Prevention of Cruelty to Animals Ordinance (Cap. 169) is modelled after the United Kingdom’s Animal Welfare Act 2006, and yet Hong Kong’s principal animal welfare legislation notably does not impose a positive duty of care for pet owners to ensure their pet’s welfare. This inadequacy in the law has been central to an animal welfare legislative reform advocated by animals lawyers in Hong Kong especially in light of the ongoing and perpetual cases of animal cruelty.

Although an actual reform of Cap 169 that would impose a positive duty of care would be most effective, until such amendments are made a pet-nup could perhaps set out the desired positive duties of care of pet owners including duties to ensure the pet has a suitable living environment, a suitable diet and a duty to ensure that the pets are protected from pain, suffering, injury and disease. A predictable argument against the imposition of pet-nups could be that (just as with pre-nuptial agreements) it would amount to unnecessary early tension between couples. However, it needs to be emphasized that a pet-nup would be completely voluntary but, hopefully, the mere existence of the same would raise awareness of what a positive of duty of care of a pet owner means.

Terms regarding costs of pet insurance

Although it is not mandatory in Hong Kong to take up pet insurance, another term that could be introduced in a pet-nup could be cost distribution between pet owners in relation to pet insurance. The aim of this term would be to ensure that the pet continues to have necessary and access to proper veterinary care.

It is certainly a financial commitment to take care of a pet. In this respect, one could therefore argue that pet insurance should be discouraged in Hong Kong because it would only amount to further financial burdens for pet owners. Higher costs of maintaining a pet could mean less people would be willing to take care of a pet, resulting in more animals left in pet shelters or an increased rate of abandoned pets. With that in mind, pet insurance should therefore be a choice (and not a requirement) for pet owners and this optional choice is strengthened by the fact that many families in Hong Kong take perfect care of their pets even without purchasing pet insurance. Nevertheless, it is hoped that an increase in voluntary pet insurance purchases in Hong Kong will help to further raise awareness on pet welfare.

The heart of a pet-nup is to ensure general welfare of the pet even after the separation of its family. The soft introduction of a pet-nup in Hong Kong (with terms including a positive duty of care and costs attribution for pet insurance) could perhaps on its own be used to increase the general welfare of pets in Hong Kong even if only a fair minority of couples decide to sign a pet-up.

Courtesy of Daphne Ng.