Every dog has their day…in the Family Court

A 2022 study estimated that there are 28.7 million pets in Australia, with 69% of Australian households owning at least one pet.¹  As a nation, it is estimated that we spend 33 billion dollars annually on our loyal companions.²

So, in circumstances of separation how does the Court determine who keeps your furry best friend?

Before Amendments

Prior to 10 June 2025 and the recent amendments to the Family Law Act 1975 (the Act) our loyal companions were treated as mere property.

In the case of Davenport & Davenport (No. 2) [2020] FCCA2766 the Husband sought the Wife enter a shared care arrangement whereby the parties share custody of their dog.  Justice Tonkin held that the Court did not have the power to order a shared care arrangement for man’s best friend.

In the case of Grunseth & Wighton [2021] FedCFamC2F 602, the parties argued over who would retain Ruby the eight-year-old Spoodle.  The Full Court held:

‘As much as it will pain pet lovers, animals are property and are to be treated as such.  Questions of attachment are not relevant, and the Court is not, in effect, to undertake a parenting case in respect to them.’

Recent Amendments

The Act now recognises Australia’s pet obsession and legislates how the Court will determine pet ownership after separation.

Pets are referred to as a Companion Animal and which is defined as an animal kept by the parties to a:

1.  marriage or de facto relationship; or
2. by an individual of a marriage or de facto relationship;

primarily for the purpose of companionship.

The Court can make an order as to who retains the Companion Animal³ and considers the following factors in doing so:

1. the circumstances in which the companion animal was acquired;
2. who has ownership or possession of the companion animal;
3. the extent to which each party cared for, and paid for the maintenance of, the companion animal;
4. any family violence to which one party has subjected or exposed the other party;
5. any history of actual or threatened cruelty or abuse by a party towards the companion animal;
6. any attachment by a party, or a child of the marriage, to the companion animal;
7. the demonstrated ability of each party to care for and maintain the companion animal in the future, without support or involvement from the other party; and
8. any other fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account.

The introduction of section 79(6) and 79(7) of the Act indicates a shift in the value our society places on pets/companion animals.  Prior to this reform, the law did not distinguish between the ownership of a Companion Animal and the ownership of an inanimate object.

The Court now recognises Companion Animals as sentient creatures capable of forming relationships/bonds with humans.

In determining a Companion Animal’s ownership the Court will consider the traditional aspects of property ownership being acquirement, possession, and maintenance as well as the non-traditional aspects of property ownership, being the relationship shared between the Companion Animal and the parties, the parties’ respective treatment of the Companion Animal, and their individual abilities to maintain the Companion Animal.

In the near future, to determine the relationship shared between Companion Animals and owners, the appointment of animal specialists may be necessary to advise the Court:

1. which party has a stronger relationship with the Companion Animals; and
2. which party can best maintain the pet into the future.

So, What If My Pet Falls Head Over Paws For My Partner?

In determining pet ownership, the Court is to consider eight separate factors.  Only one of the eight factors concerns the Companion Animal’s attachment to parties.  If your Companion Animal’s loyalty wains you can still demonstrate your right to pet ownership by demonstrating the other seven factors.

Alternatively, we might just see an influx of people entering into Binding Financial Agreements in an attempt to oust the jurisdiction of the Court regarding their four-legged friend at separation.

Disclaimer

The information contained in this publication does not constitute legal advice and should not be relied upon as such. You should seek legal advice in relation to any particular matter you may have before relying or acting on this information. The Lavan team are here to assist.

Footnotes

1. Animal Medicines Australia (2022) Pets in Australia: A national survey of pets and people AMAU008-Pet-Ownership22-Report_v1.6_WEB.pdf (animalmedicinesaustralia.org.au).
2. Ibid.
3. Animal Medicines Australia (2022) Pets in Australia: A national survey of pets and people AMAU008-Pet-Ownership22-Report_v1.6_WEB.pdf (animalmedicinesaustralia.org.au).