Family Pets – What happens to your pet during separation or divorce?
61% of households in Australia own pets, According to Animal Medicines Australia, and most people consider their dog or cat as a member of their family .
So what happens when the family is broken up through divorce or separation. Who has custody over their pets and how is this decided by Australian courts?
Family Law in Australia is broken down into two main parts - division of property and matters affecting children. No category for pets! So how is this issue resolved.
Are Pets Considered Property?
The Family Law Act 1975 (Cth) (“FLA”) which governs Family Law across all of Australia, does not make any reference to pets, but, the legal classification of pets falls under chattels or property. The FLA gives the court broad discretion to assign property between parties and this is used by the courts to decide who gets custody of the pet.
Many people argue that the emotional attachment they have to their household pets is closer of an attachment to children rather than property. In a case before the court in 2017[1], the court said that the ownership of the pet is determined on the contributions to the asset (or pet). Essentially, the court was asking who contributed more time and money to the pet. In this case, the husband was the registered owner and had initially paid for the dog as a gift for the wife. However, the wife had spent more time, care, and finances towards the dog. So, the court gave possession of the dog to the wife.
Regardless of the way the law characterises pets as property, Judge Harman acknowledged the emotional difference between property and pets and said[2]:
“dogs are not our whole life, but they make our lives whole”. I am completely empathetic with the importance this issue holds for the parties and conscious that the parties and each of them may consider this sentient creature, this living being, as fundamentally important to them.”
In households without children the court will usually look at the person who purchased the pet and who the pet is registered under. The court will also look at who took care and spent money on the pet along with the emotional connections formed. However, in households with children, pet custody may become a more complicated issue.
Children & Pets
In an older case[3], a couple had separated and were in dispute about the custody of their child and the custody of their child’s dog. The court said that the child would stay with the mother and visit the father certain weekends. The attachment of the child to his dog was the reason the court decided that the dog was to travel with the child between his mother’s and father’s residences. This case was pivotal with the court recognising the relationship between the child and the dog.
How to Avoid Issues of Pet Custody?
1. Resolving the issue… amicably
Avoiding legal agreements and the intervention of the courts should always be in the best interests of both parties during a separation. If it is possible to carry out negotiations amicably between two parties while keeping the best interests of your family, this is always recommended. In cases where this is not possible, alternative dispute resolution such as mediation may be the best option. However, in many cases this is not possible and legal avenues might be necessary.
2. Consent Orders, Binding Financial Agreement & Property Orders
If you have reached an agreement about the custody of your pet, you can formalise and bind this agreement through applying for property consent orders through the Family Court of Australia or you may choose to enter a binding financial agreement which includes provisions of the custody of your pet in the event your marriage or de facto relationship breaks down.
In some circumstances the other party may not be compliant, and you may have to resort to making an application for property orders through the Family Court of Australia which will incorporate the ownership of your pet.
How we can help?
At Voice Lawyers we provide mediation services and Family Law advice and representation and understand the sensitivities of many issues that are involved in the processes of separation and divorce.
If you have any questions regarding Family Law please feel free to contact us: (02) 92611954 voice@voicelawyers.com or you can book an initial consultation online https://portal.voicelawyers.com/
[1] Downey & Beale [2017] FCCA 316
[2] at [13]:
[3] Jarvis & Weston [2007] FamCA 1339