Who Gets the Dog? Pets in Family Law Matters

We love our pets and often they truly are part of the family. So when it comes to the end of a relationship or separation of a family, it can be very important to take a pet into consideration.

In most cases separating parties are able to resolve this issue amicably, as it may be understood from the start which person owns, or is the main caregiver for a particular pet. For others however, a disagreement may arise as to whom certain pets will live with, and even whether the other party can visit to spend time with the pets.

Unfortunately, sometimes the motivation for one party keeping a pet as part of the family law process may be for the wrong reasons. People can feel very close and form long term attachments to animals and one party might try to keep the pet to upset the other party or use it as a weapon. Threats to euthanise the pet to eliminate the issue entirely is particularly upsetting.

Aside from being unfair to the animal, situations such as these are unlikely to end well for either party. Another issue that is sometimes faced, is in cases involving family violence. Often, if the victim of family violence leaves, they may not be able to take their pet in to temporary accommodation or a refuge.^[1] This also poses the problem of leaving the pet in an unsafe and hostile environment.

Family law is generally broken into two sections, property and parenting. Determining the ownership of a pet after separation falls under property. The Family Law Act (1975) does not make specific provision for pets, rather they fall under the category of “chattels” – or simply, property. Most items in the property pool are allocated a value, but how can you place a value on a family pet? If the pet is used for racing or breeding purposes and provides an income of some kind, it may be allocated a financial value. However, as a general rule, a value is not placed on a pet when considering property division in family law.

While pets are considered property, the Court does acknowledge the comforting nature of pets, with Judge Harman in the case of Downey v Beale stating that “one would hope, in this neoliberal world that we have not yet come to the point where even love and affection are commoditised”.

Determining factors considered by the Court when deciding who gets the Pet

Accommodation – Can the pet live at the accommodation, for example rental accommodation?

Who was the main caregiver? – Who registered the dog, who fed it and took it for walks, who took it to the vet for vaccinations etc.?

Was the pet given to one of the parties as a gift?

The court will use the above information when considering which party should keep the pet.

In many cases involving children, the court will decide to give the pet to one parent. However, orders are sometimes made for the pet to accompany the child or children in moving between parents’ houses. In other situations, such as in the case of Poulos v Poulos, the Court made orders allowing the mother to keep the pet dog, even after the child was ordered to live with the father. The court considered factors such as the mother’s stress and her long term bond with the dog. Additionally, the calculation of spousal maintenance took into consideration pet friendly accommodation for the mother.

If you have a dispute that includes a pet, orders can take into consideration future costs and maintenance of the pet. This can include the cost of vaccinations, food and veterinary costs.

Pre-Nuptial Agreements

One preventive measure which can be taken to safeguard against any future dispute, is to enter into a prior agreement. A “prenuptial agreement”, also known as a binding financial agreement, can include pets in the property pool. If this is done, it is important to specify the exact details of the pet, or specify how you and your partner plan to purchase a pet and who will keep it should the relationship end. This option could avoid potentially lengthy legal proceedings after separation.

Family law disputes can take their toll on all members of the family, especially when involving a beloved family pet. As acknowledged by Judge Harman, “dogs are not our whole lives, but they make our lives whole.” At elringtons we understand that pets are more than just property and they provide immense happiness and comfort, especially when it is needed most.