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Who Gets the Family Pet? An Australian Family Law Perspective

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By Carmel Morrison

If you are separating from your spouse and a dispute arises over who will take the family pet, the Australian Family Law Act 1975 does not specifically provide for this situation and there is some uncertainty in this area.

It is not unusual for families and couples to have a pet in Australia, and for those pets to be a loved member of the family. Whilst the arrangements for the care of children following a separation are determined according to what is in their best interests, there are very few reported court decisions that address pet ownership following the breakdown of a relationship.

Under Australian law the Family Court will likely consider a pet to be the property of the parties and will treat the pet much like other assets or property such as land, houses, furniture and cars.

When approaching the matter of the usual types of assets and property, the Court will consider the financial and non-financial contributions made by each of the parties to the dispute. The court is therefore likely to consider the following sorts of matters when it comes to pets:

  • The pet’s council registration and microchip;
  • With whom the pet has resided;
  • With whom the animal has an emotional bond:
  • Which party or family member wanted to get the pet originally;
  • Who looked after and cared for the pet;
  • Who trained the pet;
  • Who took it to the vet; and
  • Who was responsible for its daily care and expenses.

Legal ownership (that is the registration of a pet) does not necessarily determine who will ultimately retain ownership of a pet in the final property settlement.

There are very few Family Court reported cases involving pets and while issues about pets are often raised, the Court is reluctant to make such decisions. The costs of running this type of application in the Court can therefore be very expensive and many litigants are deterred from making them for this reason.

In many cases, possession of the pet may be the determining factor therefore if the pet is in your care and you want to keep it, it can be almost impossible for the other party to be successful.

What are your options?

If you genuinely want to retain your pet, the first thing to do is to try negotiating with your spouse first. This can save you the expense of protracted litigation and legal fees and might resolve the issue of the family pet quite easily.

There are many ways to deal with pets and below are some examples you can consider:

  1. If you have children, the pets can remain where the children are and can visit the other parent with the children when they spend time with the non-residential parent;
  2. One party might retain the pet for more time and the other party can receive visiting rights by agreement much like making arrangements for children; and
  3. You can seek the pet be added to consent orders that deal with other financial or parenting matters or prepare a Binding Financial Agreement that takes the arrangements and payment of expenses for the pet into consideration with the other property or assets.

When it comes to the family pet, emotions can run high, particularly when children are involved and they are attached to the pet as well. It is advisable to keep the pet with you rather than attempt to negotiate arrangements for the pet later, particularly if you later want the pet returned to you. MST Lawyers can help you navigate your way through either situation, should they arise.

This article is not intended to be legal advice. If you require legal advice or representation with respect to the above situation or for your Family Law matters in general, please contact our highly experienced Family Lawyers at MST Lawyers on (03) 8540 0200 or at familylaw@mst.com.au.