Most animal lovers would agree that our pets form part of our family, so when it comes to the breakdown of a relationship it is important to know how family law determines what happens to our pets.
In the vast majority of cases, separating parties are able to resolve issues relating to pets amicably and by negotiation. In these cases, there is generally agreement as to who had the closer bond with the pet during the relationship, who the pet’s primary carer was, who purchased it and who can make arrangements to continue to care for the pet (i.e. by obtaining pet-friendly accommodation post separation). However, in some cases, a disagreement may arise as to who keeps the pet. This issue is often exacerbated in cases where children are involved as the children have a particular attachment to the pet and are used to it forming a part of their day. The separation from a pet is yet another disruptive and upsetting consequence of the separation of the child’s parents. In these cases, agreements about which parent should keep the pet are required to be negotiated in parallel with parenting arrangements for children. For example, the parties may agree that the pet accompanies the children to the respective homes of each of the parents.
What happens if we can’t reach an agreement with our pets?
Family law is generally separated into two categories, property and parenting. The Family Law Act (1975) does not contain specific provision relating to pets. Rather, pets simply fall under the category of “chattels” – or merely, property. This information comes as a surprise to most people, particularly given that in reality, pets constitute so much more than a possession to most pet owners. Unlike most items of property in family law matters, pets are not ordinarily assigned a value and included in the Balance Sheet, unless they hold some objective value derived from their use, for example in breeding or racing. Further, unlike some items of property such as funds held in a bank account, on the face of it there does not appear to be a fair or humane way to “divide” a family pet. However, Orders relating to pets are made as if pets were items of property. As such, there is no provision in the Family Law Act for “care” arrangements to be determined in relation to pets. It follows then that unlike as is the case with parenting Orders, the Court is not required to take into consideration what is best for the pet in determining who should retain the pet in a final determination of a family law matter.
Some of the factors the Court does take into consideration when deciding who gets the pet include:
- Who was the main caregiver for the pet (both prior to and post separation)? – Who registered the dog, who fed it and took it for walks, who was responsible for arranging vaccinations and vet visits etc.?
- Living arrangements – Can the pet live at the accommodation of a particular party following separation, for example rental accommodation?
- Who paid for the pet? Was the pet given to one of the parties as a gift?
- Who meets the ongoing costs of the pet?
Notwithstanding that pets are considered property and that their best interests are not factored into decisions relating to them, in a recent family law case, the Judge stated that “one would hope, in this neoliberal world that we have not yet come to the point where even love and affection are commoditised”.
So, who gets to keep the family pet?
In many cases involving pets and children, the court will decide to give the pet to the primary parent. However, orders can also be made providing for the pet to accompany the children in moving between parents’ houses, consistent with parenting orders. Further, in some cases, the Court has made Orders for one parent to keep the pet notwithstanding the childrens’ attachment to the pet where evidence is given regarding the impact of the pet on the wellbeing of the relevant party and the long-term bond between that party and the pet. Family law cases can also take into consideration the cost of owning and accommodating a pet when calculating spouse maintenance payments to the party retaining the pet.
Doolan Wagner Family Lawyers offer specialist family law advice in St Leonards on Sydney’s North Shore. If you have recently separated or have a Family Law enquiry, please contact us on (02) 9437 0010 or send us an email at firstname.lastname@example.org to discuss your matter in complete confidence. We have a dedicated team of experienced family lawyers to handle your matter effectively and efficiently, providing you with reliable, direct and practical advice.
About the Authors:
Lisa Wagner is Managing Director & Principal of Doolan Wagner Family Lawyers. Lisa is an Accredited Family Law specialist and a nationally registered Family Dispute Resolution Practitioner. Lisa has close to 30 years’ experience as a specialist family lawyer, experienced litigator and skilful negotiator in all family law matters.
Connect with Lisa on LinkedIn: linkedin.com/in/lisawagnerdwfl
Lucy Warhurst is a Senior Associate at Doolan Wagner Family Lawyers. Lucy’s considered, strategic and practical approach to family law litigation intersects with her natural empathy to achieve constructive resolutions for her client’s and their families. Lucy has extensive experience conducting family law matters before the Federal Circuit Court and Family Court of Australia to the Final Hearing stage and is currently completing her Masters in Family Law.
Connect with Lucy on LinkedIn: linkedin.com/in/lucywarhurst
These posts are only intended as an overview or comment on current issues that may interest you and are not legal advice. If there are any matters that you would like us to advise you on, then please contact us.