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Don’t let the fur fly over pet custody

22 November 2021

Some days there’s nothing better than coming home to an enthusiastic welcome from the dog, or the purring contentment of the cat. But what happens to the family pet in a divorce? Who gets custody of Fido or Kitty?

Under Australian law, pets are considered property and can be dealt with the same as any other type of asset. It seems a harsh way of dealing with our furry friends, but courts can – in some cases – determine who gets the pets in a split.

There are a couple of options for people concerned about where the family pet will live after a relationship breakdown.

  1. Try and negotiate with your spouse first. It’s always best to attempt to negotiate the living arrangements of the pets between parties, rather than fight it out in court. Some recent arrangements have involved the pets remaining with the children and travelling between homes at the same time as the children. Or, maybe the parent who did not retain primary custody of the children gets to keep the pets, as a way of combating loneliness and stress.
  2. You can seek consent orders or prepare a binding financial agreement. This makes provision for who retains your pet. Courts may consider – who the pet has resided with; with whom the animal has an emotional bond; who has been responsible for the expenses related to the animal, and whose name the pet is registered in.
  3. It’s important to remember that if you include your pet in a property settlement, it will be treated as an asset and the court can make any order it sees fit for dealing with it – including ordering the pet to be sold, just like the house or car. However, animals are not generally regarded by the courts as “significant assets”, unless they have a substantial monetary value, such as a racehorse or pedigree dog.

Recent Case

In a recent case in the family court the Wife commenced proceedings seeking interim and final orders with respect to the adjustment of property interests. In her Application, the Wife sought an order that she retain possession of the parties’ 6-year-old rescue dog. By way of Response, the Husband sought orders for “shared custody” of the dog. In particular, the Husband sought orders providing that the dog live with the Wife and that he has access to the dog at his home two days/nights per week with changeover to occur at an agreed location such as a park or Pet Barn. Interestingly, the Husband did not seek to retain the dog on a final basis.

Facts

The Wife was the registered owner of the dog, which was purchased during the parties’ cohabitation and just prior to their marriage. During the parties’ relationship, the Wife cared for the dog. However, the Husband argued that he had made financial contributions towards the initial purchase of the dog and towards food and supplies for the dog over the years.

The dog had remained in the Wife’s possession following separation and, in various affidavits, the Husband claimed that he was suffering mental stress and depression due to not having access to the dog.

Decision

The court ordered that the Husband’s interim application for shared custody be dismissed for want of jurisdiction. The Judge remarked that the Family Law Act makes no reference to pets and, hard as that may be for dog lovers to accept, the law here concerns the alteration of interests in property.

Ultimately, the court was satisfied that a dog is regarded as property,  and that the Court has no jurisdiction under the Family Law Act to make an order for “shared custody” of a dog.

In another recent case the court dealt with the issue of where a couple’s dog was going to live after they had divorced. The facts in the case were:

  • The couple were initially unable to reach consent in relation to their property division, which ultimately provided for the husband to retain the house and make a cash payment to the wife. They eventually entered into a consent order providing for each of them to retain all assets in their respective names.
  • The only issue that remained was who would retain the family dog. The husband sought an order for the dog to be transferred to him. The wife sought to rely on the consent order, which stated that they each retain the assets in their respective possessions, and for her that would include the dog.
  • The couple agreed that the husband had paid the $300 for the purchase of the dog, when the pair had first started dating. The wife said that the dog resided with her at her parents’ property after its purchase and that she was financially responsible for the dog since its adoption. She produced a number of bank statements to verify her payment of the dog’s expenses.
  • The husband’s case was that the dog lived with him after its adoption and only started living at the wife’s parents’ property when the parties began living together. He also argued that the court should make an order that the dog be returned to him, as it was registered in his name. However, that registration was done by the husband eight months after the couple had separated.
  • The court found that the registration of the dog was “self-serving” and had been done by the husband only after the wife asserted ownership of the dog. Whilst the dog was registered in the husband’s name, the wife provided enough evidence to prove her care of the dog and the court therefore found her to be the owner.

Should the law be changed?

Debates are raging in many countries as to the precise legal status that animals should have. Animal rights advocates argue that the treatment of animals as property is inappropriate, given that they are sentient beings capable of experiencing complex emotions. These voices also claim that the importance domestic animals have to their families is inconsistent with them being treated as “chattels” or property.

In the United States and Israel, courts have incorporated the “best interests” approach used in parenting matters to help decide the fate of family pets. And in Switzerland, they have amended their Civil Code to deal with issue of pet ownership.

Australian courts have resisted applying the “best interests” principle to animals, despite calls for them to do so.

If you have concerns about living arrangements for your pets, or any other aspect of family law, contact our office today. The experts at Michael Lynch Family Lawyers are here to help you. Make an appointment by calling: (07) 3221 4300 or by emailing: [email protected]

2021-09-28T16:21:34+10:00

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