Divorce: Keeping custody of the family pet

When parties of a marriage or de facto relationship separate, there may be a dispute with regard to who keeps the family pet(s) regardless of whether it be Gordon the gold fish, Fergus the cat or Sparkey the loyal family dog. 

The question is, how does the law incorporate the treatment of pets in divorce proceedings?

For most separated couples it is usually not clear who has the right to keep the pet failing an agreement, and this can cause added stress to an already tense time when the parties may be trying to resolve property and/or children’s matters.

Sometimes, pets can also be used as pawns in the negotiation process or withheld by a party out of spite, from the party who truly wants the pet.

Property settlement (including child support and spousal maintenance) and parenting matters have clear statutory frameworks in which they can be resolved without the help of a divorce lawyer. However, the final decision as to who keeps the family pet is not as readily defined in the law.

So how does the Family Court decide who keeps the family pet?

Most people regard their family pet as a member of the family.  Many would hope that if there was a disagreement about who keeps the pet, then the Family Court could impose “custody” arrangements for the pet similar to how children’s matters are treated.  However, unlike child related matters, the "best interests" principle is not applied to pets.

Family law cases have established that family pets are to be treated as “personal property”.  They will fall under the property settlement of the parties, and will be allocated a dollar value (if needed) as part of the final settlement.

The Family Court will assess factors including the following:

1. Who is the registered owner of the animal
2. Who has the possession/care of the animal
3. Who will have suitable accommodation for the animal in light of the property settlement
4. Who can continue to maintain the animal i.e. ensuring the animal is fed, properly housed and treatment by a vet, when necessary, is readily available. 

Whilst the Family Court does not have the jurisdiction to make live with/spend time with orders in relation to a pet, like it can in children’s matters, the Family Court may order the pet to travel with the child between the parents to comfort the child and create a familiar household between residences.

Given pets are regarded as personal property then they fall within the context of Section 81 of the Family Law Act 1975 (Cth) which states in part that “the Court shall, as far as practicable, make such orders as will finally determine the financial relationships between the parties to the marriage and avoid further proceedings between them”.  This would imply that the court would not be willing to make orders keeping the parties in contact with one another through continuing to share possession of property when this tie could be severed.

Lavan comment

Given litigation around family pets is an expensive exercise and the Family Court only has limited powers to make orders with respect to pets, it is suggested that people do the following

1. When you purchase a family pet, register it in the name of the person who is the primary owner/carer of the animal
2. If you are the true owner/carer of the pet then keep possession of it following separation to establish the clear ownership nexus
3. Ensure you are able to properly house the pet in suitable accommodation and be able to meet its food and medical expenses

In the event of both parties want to spend time with the animal following separation, then an informal agreement may be drawn up between the parties potentially covering who the pet will live with, and what each party will be financially responsible for.  However this agreement would have limited enforcement in the Family Court.

We note this article is general information and should not be relied upon as specific legal advice.