During a relationship, especially a long one, many couples purchase a pet who end up becoming beloved family members in the owners’ eyes, so any suggestion that they should not be treated in the same way as children is met with surprise.
How are pets treated in family law?
As much as we see our beloved fur babies like family, unfortunately, the Family Law Act does not mention pets, and therefore the general legal position is that they are chattels. Disputes about who should keep pets are rarely decided by the Court. This is likely because the Court takes a relatively poor view of parties who cannot resolve the division of personal property and can be considered akin to arguing over a couch.
How does the Australian court determine pet ownership?
However, if a resolution cannot be reached and the matter must be determined by the Court the allocation of ownership of the pet will be determined in accordance with the principles applied to other assets in property settlement proceedings. The Court has the power to make any order it considers appropriate altering the interests of the parties to the relationship. The factors the Court may look at when determining what is appropriate are:
- The name the pet is registered in;
- Whether the pet was paid for by one party or jointly;
- Whether the pet was brought into the relationship by one party;
- If there are any children of the relationship who wish for the dog to remain in their household;
- The suitability of the homes of each of the parties; and
- The space required to keep the pet.
Resolving pet custody disputes
Many separations are highly emotional, and feelings can be amplified with fighting over the family cat, dog, or ferret. Parties are encouraged to negotiate an agreement between themselves as to who will retain the pet. This might be achieved through alternative dispute resolution. The court is only ever a last resort, especially for cases solely dealing with the narrow issue of pet ownership.
If property proceedings are already underway for other items of property, it is commonplace for the family pet to be excluded from the list of assets in the balance sheet. If they are to be included, they would usually be given a nominal value. If an animal is valuable, for example, a prize-winning show dog or thoroughbred racehorse, it may need to be valued and subsequently entered on the balance sheet. Similarly, it may be appropriate to enter these on the balance sheet for income-generating animals such as livestock.
While the legal position is that pets are things that are allocated to one of the parties in a property settlement, this does not preclude parties from coming to an agreement for the pet to spend time with the other. In some cases, parties even come to shared care arrangements where the pet spends alternative weeks with each of the parties.