Divorce – Who Keeps the Pets

Most pet owners freely consider their furry, feathery or even scaly friends to be ‘part of the family’ to a point even where many instinctively refer to their pets as children. But who gets ownership of the family pet if its owners divorce or experience a relationship breakdown?

Under the Family Law Act 1975 (Cth), the ongoing care of children to a relationship is carefully managed by an extensive array of provisions designed to ensure that the best interests of those children are met. Australian law however, considers pets to be just another form of property. Therefore, the working out of where little “Fluffy’ is going to live is done in the same was decisions are made about the family car and the living room couch.

A Family Court Judge has the authority to make orders to protect property from waste, destruction or damage. On those few occasions where pet custody cases have ended up in court, the desicions in each instance considered:

–  Who is the registered owner;

–  Who paid for the initial and ongoing expenses;

–  Who was the main caregiver during and after the relationship;

–  Whether the parties will have appropriate accommodation for the pet; and

–  If there are parenting arrangements for children, whether the children have a special attachment to the pet.

A Judge is therefore not strictly bound to consider the animal’s wellbeing except where a pet might be subject to violence or some other cruelty.

Alternatively, a couple could make a binding ‘pre-nup’ financial agreement outside of Court that specifies which partner will obtain sole custody of the pet in the event of a relationship breakdown. Since pets are legaly property, there should be no reason why a Family Court Judge would not enforce the Agreement if the couple were to separate at some point in the future.

Regarding informal shared custody arrangements, it is unlikely that a Family Court Judge would make or enforce an order for shared custody due to the need for ongoing legal intervention. Nevertheless, it could be justified where a child to the relationship has a service or emotional support animal that needs to travel with the child between households. However, this is yet to be tested in court.

Joshua Noble is an Accredited Family Law Specialist at Zande Law located at Suite 3, Jade Chambers, 15 Middle Street, Cleveland. To contact Josh for advice, please phone (07) 3385 0999 to schedule an appointment.

The information in this article is merely a guide and not a full explanation of the law. This firm cannot take responsibility for any action readers take based on this information. When making decisions that could affect your legal rights, please contact us for professional advice.