Who Keeps the Pets?
Our beloved pets bring joy, comfort and companionship to our lives and are considered members of the family. Once a separation has occurred, the question then becomes who gets to keep the pets?
In Australia, there is no specific provision in the Family Law Act 1975 (“the Act”) relating to pets. Surprisingly to most, in the context of family law, pets are treated as property.
Though pets are considered property, they are not valued like other assets that need to be divided, such as cars or bank funds, as they are not considered to have much monetary value.
The one exception to this is if a pet generates income for an owner, for example because it is a pedigree dog or racing dog, in which case the pet is likely to be treated as a business asset.
Although it can be an emotional and challenging decision, it is generally better for separating parties to resolve pet ownership issues on their own through direct or lawyer assisted negotiations, or mediation, rather than involving the Court.
If an agreement cannot be reached and intervention by the Court is required, the Court will determine pet ownership based on the factors like those used for dividing other assets. These factors include but are not limited to:
- Who purchased the pet?
If one party purchased the pet before or during the relationship, that person may have a stronger claim to keep it, particularly if the pet is registered to this person.
- Who has been the primary caregiver?
Courts may take into account who was primarily responsible for the pet’s care including who fed and walked the pet and who generally took the pet to the vet.
- Who made more financial contributions?
Courts may take into account who has financially supported the pet by covering expenses such as food, vet bills and other pet-related expenses.
- The children’s welfare:
In certain cases, if children are involved and have a strong bond with the pet, the Court may decide to place the pet with the parent who has primary custody of the children.
Reaching an agreement outside of Court will alleviate the stress and emotional toll of Court proceedings and will allow both parties to focus on the well-being of their pet.
Family Law and Pets in the Future
On 22 August 2024, the Family Law Amendment Bill 2024 (“the Bill”) was introduced into Parliament containing proposed amendments to the Act. One of the intentions of this Bill is to legislate and clarify the considerations a Court may take into account when determining who should keep a pet. The Bill proposes the following:
- The inclusion of the definition ‘companion animal’ in the Act meaning an animal kept by the parties primarily for the purpose of companionship. The proposed definition specifically excludes assistance animals, animals kept as part of a business, animals kept for agricultural purposes or animals kept for use in laboratory tests or experiments from meeting the definition of a ‘companion animal’.
- The creation of an additional of a set of factors the Court will need to consider when deciding who keeps the pet. The following considerations are proposed in the Bill:
- The circumstances in which the companion animal was acquired.
- Who has ownership or possession of the companion animal.
- The extent to which each party cared for, and paid for the maintenance of, the companion animal.
- Any family violence to which one party has subjected or exposed the other party.
- Any history of actual or threatened cruelty or abuse by a party towards a companion animal.
- Any attachment by a party, or a child of the marriage/relationship, to the companion animal.
- The demonstrated ability of each party to care for and maintain the companion animal in the future, without support or involvement from the other party.
- Any other fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account.
- The addition of legislation confirming what kind of orders a Court can make about who keeps a pet. The Court can only make an order that one party keeps the pet or that the pet be sold. The Court cannot make an order that sees the pet living with one party and being in the care of the other party at particular times.
If enacted, these proposed changes will provide more clarity to separating couples who are trying to determine who should keep the family pet.
For further information or legal advice tailored to your situation, please contact the Family Law team on (03) 9739 7377.