Pets are your bundle of joy and a valued member of your family. They deserve to be cared for with love and respect. When separation occurs, it can be a difficult time and even more difficult when there is disagreement as to what will happen with your pet’s future care and living arrangements.
How does the court deal with pets in Family Law?
Family Law is generally broken into two sections – Parenting and Property. The Family Law Act does not have specific provisions to deal with pets. As a result, there is no clear or determinative way as to how the Court treats pets. But generally, the ownership of pets after separation falls under property and unfortunately, they are usually treated similar to inanimate objects such as chattels, furniture and white goods.
Depending on the circumstances, and whether there are children involved in the matter, there is generally no possibility for shared ownership of the pets following separation since ownership goes solely to one person to finalise their financial relationship once and for all. It may be the case that market value is attributed to the animal (which is inconsistent with the emotional value of the animal), and it forms part of the asset pool available for division. The person who keeps the animal then compensates the other for the value of the animal in consideration of the whole asset pool, including superannuation and the other assets, liabilities, and financial resources they are retaining.
While pets are considered property, the Court does acknowledge the comforting nature of pets. In many cases involving a child/ children, the Court will decide to make orders that the pet accompanies the child or children in moving between the parents’ homes.
What factors does the Court consider?
- If the pet is registered with the council, under whose name the pet is registered.
- Who is registered on the pet’s microchip.
- When the animal was purchased (before, during and after separation) and who paid for the purchase of the pet;
- Who the pet resided with before, during and after separation;
- Who paid the bills for the pet (e.g. training, vet bills, food, etc.).
- Who was the main caregiver of the pet.
- With whom the pet has an emotional bond.
- If there are children, the children’s bond with the animal and who the children live with.
- Each of your living circumstances and whether it is suitable for the pet (e.g. pet-friendly, large backyard, fenced, etc.).
- Any other relevant matters involving the pet’s care.
What are your options?
1.Negotiate directly with your former spouse/partner
Instead of leaving the decisions relating to your pet’s future arrangements to be determined by the Court, it is best to try and amicably negotiate directly between yourselves because you both know the pet the best and each of your circumstances. If you are unable to negotiate directly between yourselves, you can consider attending mediation. With the help of an independent third party to assist you in reaching an agreement to decide who the pet lives with, the time the pet will spend with the other party and who pays for the pet’s expenses etc. You can maintain control over the outcome that works for both of you and is in the pet’s best interests.
2. Consent Orders or Binding Financial Agreement which includes provisions for your pet
If you can reach an agreement with your former spouse/partner, it is important to understand that the agreement is not legally enforceable. Until the agreement is formalised, it is only a reflection of your intentions. For a legally enforceable agreement, you and your former spouse need to formalise the agreement by way of:
a) Consent Orders; or b) Binding Financial Agreement. These documents cover property settlement matters but can also include provisions for your pet which will be considered as part of your property settlement.
3.Make an application for property orders in Court which includes your pet
If you have exhausted all options, including negotiation and mediation with your former spouse, you can make an Application for Property Settlement Matters with the Court, which includes seeking specific orders for your pet. If you take this option, you will need to consider the associated legal expenses to pursue ownership of the pet, with no guaranteed outcome at the end given the Court’s unclear way of dealing with such issues. It is also important to understand that the courts are often reluctant to deal with issues relating to pets. As is often the case with other chattels, such as furnishings and white goods, possession can often be a determinative factor of the issue.
If we can assist you or provide you with further information relating to your pet and your unique circumstances, please do not hesitate to contact our office. Talk to us and let one of our family lawyers guide you in reaching an agreement best for your valued family member.