Published: 13 May 2022
Author: Mei Ngo

Custody of pets upon separation

Pets are often the most cherished member of a family and are a primary companion for many people. A pet can be a welcome source of love, comfort and distraction from everyday stress. Clients experiencing separation and divorce often seek guidance on who has custody of their beloved pets.

Pets Dispute in Australian Family Law Courts

The Family Law Act 1975 does not specifically provide for how a Court is to determine who keeps a pet after separation.

While many people may not see their pet as “property”, and rather as a quasi-child, pets are considered as property by the Family Court and the Federal Circuit Court, just like furniture or chattels. The case law indicates that the appropriate approach to determine pet ownership is via the property settlement principles under section 79 of the Act.

Animals are not regarded as significant assets unless they have a substantial monetary value such as, for example, racehorses or pedigree dogs or income-generating animals, such as livestock or farm animals. Despite the emotional connection one may have to a family pet, unfortunately the Federal Circuit and Family Court of Australia will not regard them as a crucial part of a property settlement and are likely to look unfavourably upon a party including a pet in a property settlement application.

People are encouraged to try to negotiate an outcome themselves. Often if there are children who are attached to the family pet, the family pet might have to stay living in the household where the children spend the most time. In the case of Jarvis & Weston [2007] FamCA 1339, the Court ultimately decided the dog was to travel with the child between the parents’ home on the basis that “the boy is attached to the dog”.

Alternately, Pet-Parenting Agreements can be made during Family Dispute Resolution/mediation, where the parties can decide who the family pet is to live with, how much time they spend time with the other party, and who pays the costs associated with the pet.

Other factors the Court will take into consideration includes:

• Who the family pet is registered under (which gives some guidance but is not a determinative factor);
• Who is registered on the microchip records for the animal;
• Who was responsible for the day to day and or medical costs of the animal;
• Who was the main caregiver of the family pet – who walked, fed, bathed and took the animal to the vet;
• The financial capacity of each party to support the family pet;
• The work and social commitments of each party; and
• The home environment proposed for domestic pet and whether it is pet friendly.

The case of Downey & Beale FCCA 316 in 2017 provides us with a clearer indication as to how the Act applies to pets. In this case, the husband asserted that he had purchased the dog during the marriage. The wife asserted the husband purchased the dog for her as a gift, and that it had lived with her at her parents’ home since it was purchased. The wife produced evidence that she paid for the dog’s food, toys, vaccinations and operations.

After separation, the husband registered ownership of the dog after he had received the wife’s affidavit asserting ownership of the dog. Despite registration being in the husband’s name, the Court decided in favour of the wife as she had made overwhelming contributions to the dog’s daily care including meeting the majority of its financial costs. The Court ultimately made an Order that the husband transfer the registration of the dog to the wife’s name.

Pet Dispute in the Magistrates Court

In April 2021, there was significant media attention around a former couple’s battle for ownership of Kobe, a $4,000 Pomeranian family dog that landed in the Melbourne Magistrates’ Court.

After hearing evidence from both parties, Magistrate Meghan Hoare decided Kobe was purchased for the de facto wife as a gift by the de facto husband and therefore Kobe should remain in her custody.

Ensuring pet protection in the future

One way to avoid a disagreement about pet ownership following a separation is to enter into a Binding Financial Agreement with your partner. A Binding Financial Agreement lists all assets owned jointly and separately by the parties and how they are to be divided in the event of separation – this includes pets.

If you find yourself in a difficult situation where pet ownership has become a contentious issue, or you wish to have some assurance that you continue to have custody of your pet after separation, please do not hesitate to contact one of our experienced and friendly family lawyers at RCT Law on 1800 641 743 or familylaw@rctlaw.com.au to arrange a free first consultation.