When advising clients in relation to the breakdown of a relationship, we are sometimes asked the question, “who gets to keep the pets?”
Issues relating to the asset pool and parenting matters are specifically addressed under the Family Law Act. There are ongoing calls for specific legislation to be introduced to deal with care arrangements for pets following separation. However, there is currently no legislative framework as to who is entitled to the care of the pets after the separation of a de facto relationship or marriage.
Pets and property
While many of us consider our pets to be part of the family, pets are technically categorised as ‘property’ under the Family Law Act. This means that pets are not dealt with in the same way that children are following a separation.
The Court has the power to make any orders it considers appropriate regarding the property of parties. This allows the Court to determine that a particular party is to assume ownership of a given asset (including pets). However, the Courts generally will not regard family pets (such as a cat or dog) to be an important part of a property settlement. Only income generating animals which have significant monetary value, will be given substantial consideration by the Courts, when determining an adjustment of property interests of the parties. For example, racehorses, pedigree dogs or cattle.
The Court is able to make financial adjustments in favour of one party, if that party has incurred significant costs in caring for a pet. Similarly, consideration will be given to any substantial future costs for the maintenance of a particular pet.
Deciding who gets the pet
Parties are strongly encouraged to reach an agreement on living arrangements for the pet following separation, without the Court’s intervention. This can be achieved through negotiation between the parties, mediation or negotiation through lawyers.
If there are children of the relationship, you should consider how ownership arrangements of the pet will impact on the wellbeing of the children. For example, an option might be for the pet to accompany the children from alternating residence from one parent to the other.
If agreement still can’t be reached on who gets the pet, the Court has the authority to make this decision for the parties. The Court can make any Orders it sees fit regarding the pet, which will be treated as an asset of the parties. This means that the Court has the power to make Orders for the pet to be sold and the sale proceeds distributed between the parties.
Things the Court would consider when determining ownership of the pet, include:
- Who purchased the pet?
- Who is the primary caregiver for the pet?
- Which party has suitable living arrangements for the pet?
- Who feeds the pet?
- Who pays for pet insurance?
- In whose name was the pet registered.
Parties who enter into a pre-nuptial agreement are also able to include terms relating to care arrangement for pets. This means you can predetermine who gets to keep the pet, in the event of your separation. The agreement should incorporate terms as to who meets particular costs for the pet, including insurance, vet bills and grooming.
This article is intended as general information only. It is not legal advice. For more information, please contact our Family Law team on (03) 9435 9044.
