Parenting arrangements and/or property settlements are at the forefront of most couples’ minds when they separate or divorce. But what happens to the family dog, cat, or other pets that were once a member of the household?

Pet ownership has increased significantly in Australia throughout the past two years of the COVID-19 pandemic, with 69 percent of households currently keeping a pet, up from 61 percent two years ago. Simultaneously, divorce and separation rates have been rising. It’s no surprise, then, that many court cases have arisen about who will maintain and care for a pet after a divorce, and who is the legal owner of the pet.

In family law, how are pets handled?

The Family Law Act 1975 (Cth) has no specific provision for pets, and while many people consider their dogs to be family members, they do not fit under the concept of a child.

Pets are thus regarded as ‘property,’ which means that the courts treat them similarly to any other home item, such as furniture or a car. As part of the property settlement, the court has the authority to decide who gets to keep the family pet.

Factors to consider while deciding who keeps the pet

Although it is a difficult decision, it is always preferable for separating couples to try to reach an agreement without the help of the courts. This can be accomplished through direct negotiations, family-assisted negotiations, or mediation. At Mediations Australia, we can help with all facets.

The size of the parties’ home/garden, social and professional responsibilities, and if the parties have the financial means to care for the pet on their own are also practical factors.

If the parties come to an agreement and want to make it legally enforceable, they should consider filing an Application for Consent Orders or a Binding Financial Agreement.

What Downey & Beale Can Teach Us

The husband and wife in this case agreed on every aspect of their family law problem except the ownership of the family dog and who was the lawful owner of the pet. The following are the facts of the case:

According to s78 of the Family Law Act 1975, if parties to a marriage state that they have a right to an item of property, the wife declared herself to be the rightful and legal owner of the pet.

The dog was registered to the husband, thus it was his by legal right, according to the Court. The Court did note, however, that the registration took place after the family law case had begun. The Court did not accept the husband’s claim that he was the legitimate owner on this ground as a result of this discovery.

Another complication occurred since the dog was bought using the husband’s own money as a gift to the wife in 2011, when the couple were dating but not living together. The dog resided with the wife and her parents at their home during this time of courting, according to the Court. This was significant since it demonstrated that the pet was a present to the wife.

Following the parties’ separation, the dog continued to live with the wife.

The Court eventually found in favour of the wife, with his Honour concluding that ultimately, on the evidence that is available and applying the standards of evidence, the wife was the owner of the dog… regardless of who paid for the pet, it was purchased for her as a present.”

Downey’s impact on family law procedures indicates how the Court views pets as property that can be gifted, sold, or transferred, rather than as treasured members of the family.

What if we are unable to make a decision? Factors to be considered by the court

If the parties are unable to agree on who keeps the family pet, an application for property orders that include the family pet can be brought to the court.

The following considerations will be considered by the court when deciding who will keep the pet:

• Who was responsible for the pet’s purchase?
• Who is the owner of the pet?
• Who was responsible for the pet’s care?
• Who was responsible for walking, feeding, and transporting the pet to the veterinarian?

The ‘best interests of the child test’ is used by Australian courts when deciding on child custody agreements. When assessing ownership, the courts do not consider the ‘best interests of the pet.’

The value of the pet will be taken into account if it has a high monetary value, such as a pedigree dog or a racehorse. This pet’s value will be utilised to determine the overall property settlement and what property each party will keep.

How will this affect my children?

Consider how the pets interact with the children if you’re pursuing both parental orders and a financial settlement. Is it feasible for one of you to keep the pets with the kids and do the handover while they are present? Do your pets follow your children around when they visit the other parent?

This may be especially beneficial if you or your children suffer from separation anxiety or have a disability, as the pet may have a particularly deep emotional relationship. It would make sense in this case for you to divide responsibility so that everyone benefits from the pet’s presence.

While we can’t make the ultimate decision on who gets the dog for you, we can surely assist you in laying out your alternatives and ensuring that you and your pets have a safe future. We have family lawyers and mediators across Australia that are highly skilled and experienced in property settlement and other asset disputes.

How You Can Resolve Pet Disputes

In the first instance, it is always preferable to try to work out the living arrangements for the pets between the parties because they are the ones who know the animal best and understand each family member’s unique bond to the pet. In some recent legal arrangements, the pet was allowed to stay with the children and move between households at the same time as the kids.

You can include the arrangements for your pets in mediation if you are unable to agree directly between yourselves. This will allow you to choose who the pet will live with, how much time the pet will spend with the other party (if any), and who will pay for the pet’s costs, among other things. You’ll be able to come to an agreement after that, but it won’t be legally binding. It’s nothing more than a reflection of your intentions. The only legally enforceable way to deal with pets is to determine who keeps the pet as an asset rather than for day-to-day arrangements.

If you and your partner are unable to reach an agreement, or if you want to pursue a legally enforceable agreement, as is often the case, you can file an Application for Consent Orders or draught a binding financial agreement that specifies who will keep your pet (amongst other property orders). Your pet will be considered property that must be split between the parties. The following are some of the factors that the court took into account when making pet-related orders:

• Who the pet lived with before, during, and after separation;
• The person with whom the animal shares an emotional tie;
• Who has been responsible for the financial costs of owning the animal; and
• In whose name the pet is registered (this element is only taken into account if registration was done before to separation and isn’t’ self-serving’).

If all other options have been explored, such as negotiation and mediation, and your former spouse refuses to agree to consent orders, you can file an application for property orders that include your pet.

Get in touch if you’re having trouble arranging a property settlement, including who gets custody of the family pet(s) or any other family law issues.

What Should You Do Now?

At Mediations Australia, we have a team of family lawyers and mediators who can assist you in Canberra, Newcastle, Dandenong, Adelaide, and Perth and all other locations in Australia. We also do international family law matters.