What Happens To Pets After Separation?
One of the most frequently asked questions when couples separate or divorce is what happens to the family pet or pets. Given that Australia has one of the highest pet ownership rates in the world with almost two-thirds of households owning a pet, it’s no wonder that it’s a common query – and a common concern.
When it comes to the law, there is no mention of pets in the Family Law Act 1975 or in the Family Court Act 1997 (WA) and therefore no legislation as to how the Court should specifically determine the ‘living or custody arrangements’ for a pet.
In the absence of legislation, pets are included in the definition of ‘Property’ (Section 4 of the Family Law Act 1975) and are considered an asset, similar to chattels, furniture and white goods. However, pets are not generally assigned a monetary value unless in situations such as those involving rare or pure breeds (on which the couple may have spent considerable sums of money) or income-deriving animals such as racehorses or breeding animals. In these instances, a market value may be attributed to the animal.
Because pets are deemed to be personal property, the Court has jurisdiction to make orders in relation to pets. This can be extremely challenging for the parties involved, particularly when there are strong emotional attachments to the pet or pets.
There are different options for resolving and formalising custody issues with regards to a pet including direct negotiation between the two parties. This can occur informally or as part of the discussions with regards to property during Mediation.
If agreement is reached on the pet’s future arrangements during negotiations or during mediation, it is only a reflection of the parties’ intentions and is not legally enforceable; that agreement can be made legally enforceable through a Consent Order or a binding financial agreement. The pet may be included as part of the property settlement.
If the parties are unable to reach agreement between one another, an Application for Property Settlement can be made with the Court. This will include seeking a specific order for possession of the pet.
If the Family Court is required to make a determination about which party is to retain a pet and/or whether a pet is to be transferred, the Court’s considerations would likely include the following:
- Who bought the pet?
- If the pet was a gift, who was it gifted to?
- In whose name is the pet registered?
- Who has been the primary carer for the pet during the relationship? In other words, who fed the pet, took responsibility for its health and welfare such as exercise, grooming and visits to the vet?
- Where has the pet resided post the separation?
- Who paid for the pet’s expenses including food, insurance, vet bills etc?
- With whom does the pet have an emotional bond?
- Whose accommodation is most suitable for the pet? (For example, a small apartment above ground level may not be suitable for a large dog).
Orders can be made for any type of pet including birds, snakes and rabbits.
As with any property settlement and any other family law disputes, the ideal outcome is for a mutually satisfactory agreement to be reached. Some couples may choose to ‘co-parent’ their pet or pets after they’ve separated. In this instance, both parties need to clearly understand their obligations to avoid any future conflict.
The Court can make an order for one party to keep a pet or pets, or for ownership to be transferred. If the Court is making an order, there are other considerations such as pet registration (does the name of the registered owner need to change?) and the details on the microchip.
West Family Lawyers have extensive experience in family law matters, including pet ‘custody’ issues and if we can assist you with reaching an agreement that is best for your valued member of the family, please get in touch.
Note that this article is general in nature and does not constitute legal advice.