It is no secret that our companion pets, or our “fur babies,” are considered integral family members of millions of Australian households by their human parents and are, under no circumstances, to be differentiated from your common human child. These pets are often even assigned their own Instagram pages. It comes as no surprise, then, when family homes breakdown and spouses separate, the unfathomable question of “who gets the pet” becomes one of the main concerns in an Australian family law property settlement dispute.
Notably, there has been a considerable increase in pet ownership in Australia with approximately 69% of all households owning at least one pet in 2022 following a “pet ownership boom” during the COVID-19 Pandemic.[1] Simultaneously, the rate of Divorce has increased by at least 13.6% since 2020.[2]
Given these statistics, it is unsurprising that more family law proceedings heard before the Federal Circuit and Family Court of Australia involve determinations as to who receives “custody” of the family pet post-separation.
Pet custody disputes in Australian family law are very real and such matters often result in intense and draining litigation.
Characterisation of Family Pets
The Family Law Act 1975 (Cth) (“the Act”) does not include specific provisions that address family pets. However, contemporary animal law in Australia generally considers animals as the legal property of their owners.
Pets are therefore considered to be property in Australian Family Law Courts and are dealt with under the property provisions of the Act as ‘chattels’ in family law property settlement disputes, similar to household contents. As a result, and despite people regarding their pets as family members, the Court’s legal priority is not the welfare or best interest of a pet when establishing ownership, as it is in the case of children pursuant to section 60CC of the Act.
Ultimately, Australian Family Law Courts have the discretion to determine who retains the family pet as part of the family law property settlement orders.
Determining who Retains the Pet
When determining who retains the pet in family law proceedings, although the Court does not have regard for the best interest of the pet, the Court may take the following factors into account:
- who purchased the pet;
- whose name is the pet registered in (if the pet is registered);
- practical considerations including the size of each parties’ property and commitments;
- whether the parties have financial capacity to care for the pet; and
- who predominantly cared for the pet.
- Further, if the pet is of significant monetary value, for example, a racehorse or pedigree dog, the Court will also consider this as a factor which forms the matrimonial property pool.
- The extent of the emotional relationship and / or attachment to the family pet by either party, or particularly, the Parties’ children, will also be assessed and evaluated by the Court as it was by Justice Moore in the case of Jarvis & Weston [2007] FamCA 1339. In this case, his Honour attributed significant weight to the recognition of the relationship between the child of the marriage and the family dog. His Honour determined that the family dog was to reside with the Wife given she was the primary carer of the child, who had a significant emotional attachment to the dog.
How can Madison Marcus Help YOU
We strongly recommend that parties reach an agreement with respect to the “custody” arrangement of their “fur babies” after separation, whether this is achieved via negotiation and / or mediation and subsequently documented by way of Consent Orders enforced by the Court or Binding Financial Agreement. The agreed provision for who retains the family pet will form part of the property orders in respect of the distribution of the matrimonial property pool.
Alternatively, and to prevent a dispute arising about pets, parties may enter into a “pre-nuptial” Financial Agreement to determine who retains a pet in the event the parties separate, as well as include provisions for the distribution of the parties’ other property and assets.
At Madison Marcus, our Family Law team is dedicated to supporting and assisting you in situations that we understand can be a challenging and emotional process. We believe that having the guidance and support of our experienced family lawyers can make a significant difference in ensuring that your legal rights and obligations are protected. Whether pets are involved or not, you can be confident that you have the support and guidance you need to navigate the process of separation.
Contact Us
For expert guidance on navigating pet custody, family law matters, or any questions regarding separation and divorce proceedings, feel free to contact our Family Law team at FWE@madisonmarcus.com.au. Our specialists are here to support you through these challenging times.
[1] Animal Medicines Australia, Pets in Australia: A National Survey of Pets and People (2022).
[2] Australian Bureau of Statistics, Marriages and Divorces, Australia (2022).
