Posted on June 29, 2021
Listen to Carol Pagès discuss this topic on the radio with 2CC Talking Canberra:
Australia has a high rate of pet ownership, and reports of the empty pet adoption shelters following Melbourne’s long lockdown in 2020, is likely to mean that rate is now even higher.
Meanwhile, the rates of separation and divorce remain high – so what happens to the pets when a couple or family breaks up?
The Family Law Act, which determines property division and the care of children following the breakdown of a marriage or de facto relationship has no specific provision for the ownership of pets following a separation. Pets can be treated as ‘property’ and included in court orders, and where valuable (such as pure bred animals, or income producing animals such as racehorses) can be incorporated in the assets and liabilities that the parties negotiate to reach their property division.
Some commentary from those advocating for animal rights suggests that the present approach is not appropriate. While the ‘best interests of the children’ is the paramount principle in determining parenting matters, should there be a ‘best interests of the pets’?
In a 2017 Federal Circuit Court case, when the only matter to be determined between the parties was the custody of the dog, the following matters were considered:
- Who bought the dog? Here it was the Husband, however the Wife argued that the dog was a birthday gift;
- Who paid the vet expenses? In this case bank statements were produced by the Wife to show it was her;
- Registration – the dog was in the Husband’s name however had only been registered after separation, and after the parties were disputing the ownership of the dog.
Court proceedings are expensive, and the Courts are very busy which means that there can be long delays in achieving an outcome.
We try and encourage clients to reach a practical solution in relation to pets. Some of the compromises we have seen work and have recommended to clients are as follows:
- Visits with the pet for the other party (where ongoing contact with your former partner will not pose an issue) for example, a walk with the dog on weekends.
- The pet join the children on visits between homes – we have seen this work for dogs, cats and rabbits!
It is helpful to consider what your immediate living arrangements will be. After separation it is common for one of the parties to rent at least initially, and there may be restrictions on pet ownerships by the landlord.
If you have separated and need assistance, please do not hesitate to contact one of our experienced solicitors.
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