We adore our pets and often they are considered to be a part of the family.
So when a relationship ends, who ‘gets the pet’ can be a very important consideration.
If you agree about who gets the pet after separating
In a lot of cases, this issue can be resolved amicably and the parties can agree who will keep the pet, or sometimes parties will agree to ‘share custody’ or arrange regular visits with the pet.
Due to the time, money and stress that can be involved in going to court, it is best to try to reach an agreement about your pets either through direct negotiation, or through family dispute resolution services (such as a mediation).
If you can’t agree about who gets the pet
In some cases for a variety of reasons the parties just can’t reach an agreement about who gets to keep the pet, so they will need to make an application for the Family Law Courts to determine the matter.
All family law disputes are dealt with under the Family Law Act 1975 (Cth) (the ‘Act’).
As much as people may consider their pets to be a part of the family, the Act does not make any reference to pets or animals. The current legal position is that pets are categorised as ‘chattels’ – which simply means property.
So, if you need to ask the Family Law Courts to make orders in relation to pets, these orders will be made as part of a property settlement.
Whilst the Family Law Courts have the power to determine who can keep the pet, the Court does not make orders about ‘sharing custody’ or allowing ‘visitation’ of a pet. Despite being classed as property, pets are also generally not regarded as having a monetary value (unless there is a particular reason, for example for a pedigree dog).
In deciding who will keep the pet, in previous cases the Family Law Courts have considered things such as:
who has possession of the pet
who has cared for the pet (such as feeding, walking, washing etc.)
who purchased the pet and whether one person had the pet before the relationship started
whether the children (when applicable) have a particular attachment to the pet
who pays the vet and food bills, and whether the party has capacity to care for the pet and a suitable place for the pet to live.
The Family Law Courts have a wide discretion under the Act and can take into account any factors they deem fit.
Can we record our agreement about who would get the pet if we separate?
Because of the classification of pets as property, one measure which can be taken to prevent any future dispute about ‘who gets the pet’ is to enter in to a binding financial agreement (‘BFA’). The BFA can cover a range of financial matters, or can just deal with the pets – this is completely up to the parties.
A BFA can be made by parties to a de facto relationship or a marriage either before living together or getting married, at any time during the relationship, or after separation or divorce.
Should the laws about pets be changed?
There has also been debate about whether the law surrounding pets should be changed. Some animal rights activists argue that the treatment of animals as property is inappropriate given that pets have awareness and experience complex emotions.
In some jurisdictions overseas, the courts have adopted a ‘best interest’ test when deciding who gets the pet – meaning that they consider what is in the pet’s best interest. The ‘best interest’ test is the test used in Australia when deciding children’s matters. Despite some push for them to do so, Australian courts have been opposed to changing the treatment of pets under family law.
If this issue effects you or someone you know please contact Dannielle Glaister in our Family Law Team to discuss on 07 3009 6555