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pet peeves: who gets pet “custody” in a separation or divorce?

For many individuals, pets are their best friends and form an integral part of the family. They are a source of emotional connection and for many, they are loved and treated like children.

But what happens to our furry friends when a relationship breaks down and people separate?

It might come as a surprise to most but in Australia, the Family Law Act does not make specific provisions for pets in a separation and are therefore treated as property. This means, unlike children, unless parties agree between themselves by consent the Court will not decide the “custody” or “living arrangements” for pets but simply assign ownership to one party.

considerations for the “custody” of pets

In treating pets like personal assets of the relationship the Court will have regard to the following:

  • Who purchased the pet?
  • Under whose name is the pet registered?
  • Who cared for the pet during the relationship?
  • Who pays for the pet’s expenses and insurance?
  • Who has suitable living arrangements for the pet going forward? If children are involved, the court may also consider the pets going with the children for their benefit.

cap “custody” in court

In the recent case of Davenport & Davenport [2020], the parties lived together from 2015, were married in 2017 and separated in April 2019. The parties owned a pet dog, which remained with the wife in the matrimonial home after separation. The husband’s requests for visits with the dog were refused by the wife. In response, the husband filed a Court application seeking orders for ‘shared custody’ of the dog in March 2020.

The Court held that the husband’s application raised a jurisdictional issue. To date, the Courts have dealt with pets, and other animals, as personal property and they had no power provided to make orders regarding custody of a pet similar to the authority to make orders relating to the custody of children.

The Court said:The Court is aware that for many people pets are regarded as members of the family however there is no provision under the Family Law Act and no specific legislation that deals with issues such as the ‘custody’ of a pet whether than be a dog, cat , bird, lizard, fish or any of the other wonderful creatures that we share the planet with that would empower a Court to make orders for shared custody of a pet”.

how to proceed

Parties are encouraged to come to an agreement in relation to arrangements for their furry friends. This can be achieved by negotiation or a mediation with the other party. The agreement can then be documented by Consent Orders with the Court to provide for who will retain the pet or the pet’s “living arrangements” with both parties. These orders would form part of the property orders made between parties dividing their other property and assets.

You can also predetermine what will happen with your pets in the event of separation whilst you are still together. This agreement would be documented in a “pre-nuptial” financial agreement that would outline what would happen with your pet if you and your partner were to separate, as well as provide for the division of your other property and assets.

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