Who gets the pet in a divorce? There is no question that for animal lovers (this writer included) pets have become an integral part of the family. We are seeing more and more clients who want to know what will happen to the family pet after divorce.
What does the law say?
There is no mention of pets in the Family Law Act 1975 (“the Act”). The Courts have, however, followed the general position that a family pet is included in the definition of property in section 4 of the Act.
As the Federal Circuit and Family Court of Australia (“FCFCOA”) has powers to alter the property interests of parties to family law disputes, they do have the jurisdiction to make orders in relation to pets.
Although the pets can be listed as an asset of the relationship (being property) they are generally given a nil monetary value. In the decision of Downey v Beale, His Honour Judge Harman noted “one would hope, in this neoliberal world that we have not yet come to the point where even love and affection are commoditised.” In general, a monetary value would only be attributable to a pet that could produce an income or a re-sale value (such as purebred animals kept for breeding purposes, show dogs or racehorses etc.).
The FCFCOA will generally take the approach that the legal owner of the pet is the person who paid for the animal and registered the animal. In 2017, the Family Court heard a case involving a dispute as to the family dog. In this matter the parties had reached consent orders for a payment to the Wife and for the parties to otherwise retain all assets in their possession and control. The Wife sought to include the family dog as one of these assets. The Husband asserted that he had legally registered the dog and so it should be returned to him.
The Family Court held that Wife had been responsible for the payment of the dog’s expenses, and it had lived with her at her parents’ home since separation. Although the Husband had legally registered the dog in his name, he had done so after separation. Orders were made for the transfer of the registration to the Wife.
Despite popular belief, there is no law requiring parties to share a pet post-separation as you would with children of a relationship. The FCFCOA can make orders by consent for one party to keep or transfer a pet. This is not limited to just dogs and can include rabbits, birds, snakes, or any other pet.
What does the FCFCOA look at?
If required to decide as to the ownership of a pet, the Family Court will look at factors like:
- Who purchased the pet;
- Who cared for the pet during the relationship and post-separation;
- Who has suitable accommodation for the pet; and
- Who has paid the pet’s expenses (food, insurance and medical costs).
Generally, if the FCFCOA is also making orders for the care arrangements of children an order will be made for the pet to live with the parent the children live with owing to the bond children have with their pets and the comfort they can provide. This approach was departed from in the case of Poulos & Poulos when orders were made for the pet dog to live with the Mother even though orders were made for the child to live with the Father. In this case, the Court held that the Mother had such a strong bond to the dog and was experiencing significant stress which the presence of the pet assisted with.
With more families choosing to have a pet (or several) it will be interesting to see whether the law develops to reflect the importance of pets in our families. If you have any questions, please contact our team on (03) 9793 7888 to organise an appointment with one of our family lawyers.