In a Family Law dispute what happens to the beloved pets

In Australia since the COVID-19 pandemic approximately 69% of households have a least one pet. Our beloved pets are a wonderful source of comfort, unconditional love, and loyal companionship. However, despite increasing divorce and separation rates there is no specific provisions in the Family Law Act 1975 relating to pets. In the Federal Circuit & Family Court of Australia pets are considered ‘property’ and the Court deals with them in a property settlement in the same way it deals with furniture or household items.

Despite the emotional value our pets hold, unless the pet is a show animal, for example a pedigree dog, or generates income for the owner, like a racehorse or livestock, in property terms it will generally be considered to have little value,  

Under section 79 (1) of the Act, the court has the power to make Orders for the sale or transfer of property, which includes the family pet as part of the property settlement.

Deciding who keeps the family pet

Despite being a difficult decision to make it is always best for separating parties to resolve the issues of pet ownership without the intervention of the court through direct negotiations, lawyer assisted negotiations or through mediation.

If the parties reach an agreement on pet custody, the arrangement can be formalised via a Consent Order. The Family Law Act states that for de facto couples, a Consent Order must be filed at least 2 years after the relationship breaks down, and for married couples, within one year of a divorce. However, in certain circumstances that period can be amended, or parties can enter into a Binding Financial Agreement.

If an agreement cannot be reached, the Court can be asked to make a decision on who keeps the pet. The Court will consider numerous factors to determine the overall ‘ownership’ such as:

• Who paid for the pet?

• Who is the pet registered to?

• Which party is the main caregiver for the pet? Who walked, fed, and took the pet to the vet?

• Which party can financially afford to pay the ongoing cost of the pet?

• The extent of a party’s relationship with the pet (especially considering children); and

• The work and social commitments of each party and whether adequate ongoing care can be given to the pet.

It is important to note that the courts do not have regard for the ‘best interests of the pet’ when determining ownership as they do when determining care arrangements for a child where the Courts apply a ‘best interest of the child test’. If the pet was purchased for the benefit of the children in the relationship, then the pet will usually live with the children and follow them between households with expenses equally shared between parties. If the pet was not purchased for the benefit of the children, or there are no children in the relationship then the Court will determine the legal owner of the pet.

In the case of Downey & Beale FCCA 316 in 2017  the husband purchased the dog for the wife during the marriage and had registered ownership of the dog.  The wife claimed the husband purchased the dog for her as a gift and since its purchase, had lived with her at the parent’s home. The wife was able to provide evidence that she paid for most of the day-to-day costs of the dog including food, vaccinations, toys and even operations. The court determined the wife was the owner of the dog as she had made significant financial contributions, paying for most of the day-to-day expenses for the dog and provided daily care. The husband had registered the dog under his name only after the wife had provided an affidavit asserting her ownership of the dog. The husband was ordered to transfer the registration of the dog to the wife by the Court.

Can we share a pet?

Shared care arrangements will ultimately require parties to continue interacting with each other on a regular basis for the duration of the pet’s life. If the parties choose ongoing arrangements, it is important that this arrangement is clear to avoid conflict, stress and costs in the future and is practical on an ongoing basis.

If you need advice or assistance regarding pet custody disputes or a Family Law matter, please contact our experienced legal team on 6800 2660 or via our website.

Please note: the information in this article is general in nature and is not legal advice. For specific advice about your circumstances, contact us to make an appointment with one of our solicitors.