Skip to main content

Around the world in recent years, there has been an increasing trend towards treating pets as sentient beings, rather than as a type of property, in family law disputes. France, Portugal, Germany, Switzerland, Austria, Portugal and most recently Spain are some of the countries which have adopted changes to their family law systems obliging courts to consider that pets are far more than simply “chattels” (movable property) shared by a couple and able to be assigned to one or the other party in a property settlement.  Numerous American states are also changing their divorce statutes in order to treat pets more like family members than property.  Meanwhile, here in Australia, pets are still legally treated as property for the purposes of family law proceedings.

With two thirds of Australians owning at least one pet, our furbabies are typically regarded as an integral part of the family.  When pet owners are going through a divorce, therefore, making arrangements for the future care of the family pets can be just as fraught as making arrangements for the future care of children. And similar to when deciding parenting arrangements, when working out what should happen with the family pets, it’s important to factor in considerations around the best interests of the animal.

When it comes to making arrangements for future care of your pets in the event that you and your partner split, what are your options?

Options for working out pet custody

  • You can work pet-related provisions into a Binding Financial Agreement. This is because Binding Financial Agreements are designed to deal with the financial and property aspects of a couple’s affairs – and of course pets are still legally regarded as property in Australia.
  • You can make your agreement on pet arrangements official by applying to the courts for consent orders, which formalise parties’ agreements after a separation.
  • You can ask a court to decide on an outcome and make orders as to what should happen with the “chattel” that is your pet, as part of an overall property settlement.
  • If you and your ex-partner have a positive working relationship, you can negotiate a “pet custody agreement” with them, similar to a parenting plan for children’s care.  These are informal agreements that are honoured by both parties and while they are not legally binding, if a dispute ends up in court, they go a long way towards demonstrating the intentions of the parties and as such, will usually be taken into account by the courts.
  • If there are children involved, you are encouraged to consider what is best for them when making decisions regarding the pets. For example, if the pet in question is considered to be a pet of the child or children, then you should strongly consider making plans for the pet that allows the pet to stay with the child or children. Whilst this isn’t a determinative factor, it is likely something to be taken into consideration if seeking a court order as to pet ownership.
  • Remember, if you are planning on litigating in the family law system – whether for property or parenting proceedings – you must first participate in pre-action procedures including dispute resolution processes such as mediation – and ideally your dispute will be resolved without the need for court action.

What key factors should a pet custody agreement address?

Every pet parent should consider a pet custody agreement that deals with all aspects of the care and control of the pet, including the future ownership and living arrangements for the animal.  This typically includes:

  • Where the pet will live and how visitation should occur
  • Transport arrangements and handovers
  • Details of diet and exercise needs
  • How ongoing and future expenses will be covered (vets, insurance, food, grooming, etc)
  • Who will be responsible for taking the pet to vet check-ups
  • Who will make major health decisions
  • End-of-life plans
  • If there is more than one pet, considerations as to whether to separate pets or keep them together.

Binding Financial Agreement

Binding Financial Agreements (BFAs) deal with finances and property and therefore can contain provisions for who should get the pet in the event of the pet parents’ relationship breaking down. Aside from outright ownership of the pet or details of how shared ownership is to work, a BFA can also specify how the pet parents will share expenses for the pet in the future.

Navigating Court proceedings

The Family Law Act 1975 is silent on pet custody and it’s an issue that the courts really expect parties to work out between themselves wherever possible.  If property settlement litigation is commenced, however, the pets can be dealt with as another “asset” according to property settlement principles.

As a starting point, therefore, the courts will look at legal ownership of the “asset” (including who purchased or paid for it; who the pet is registered to; who made financial contributions towards it; and the value of the pet).

The value of the pet

In a property settlement, pets are not usually regarded as significant assets. Occasionally, pets may have a substantial monetary value, for example pedigreed animals.  Similarly, income-generating pets (for instance, show animals or livestock) may have a significant monetary value in a property settlement. However, other pets are usually only assigned a nominal market value during a property settlement.

Case law suggests that the financial value placed on the pet will be the replacement value, i.e. what it will cost to purchase a new pet of the same breed. If your pet’s replacement value is significant, then you should speak to your lawyer about whether it should be included in your balance sheet for your property division. The person not receiving or retaining ownership of the pet can also talk to a lawyer about receiving financial compensation as part of the property settlement.

What else do courts consider regarding pet custody?

There are a whole range of factors that the courts might consider when determining what to do with this particular “asset”.  For example, who is the main carer of the pet?  Does the pet have more of an attachment to one owner?  Which party can best give them safe and comfortable shelter?

The courts might look at the nature and quality of each pet-parent’s relationship with the animal.  For example, sometimes one party has been the chief provider of exercise, nutrition, stimulation and attention; or they may be more involved in the pet’s vet care or grooming or have been in charge of training, etc.

The best interests of the pet

As mentioned, around the world, lawmakers are amending legislation so that family courts can rule on pet custody using “the best interests of the pet” as a similar welfare principle as is used in parenting proceedings.

This formalises the need to treat pets as more than objects to be divided in a divorce settlement. It also enshrines the requirement to consider the needs of the animal, rather than the owners.

At Alliance Family Law, we can assist you with negotiating an informal pet custody agreement with your partner, formalising it either as consent orders or as part of a Binding Financial Agreement (pre or post-nup). We can also refer you to mediation or other Alternative Dispute Resolution if need be.  Please contact Canberra family lawyer Cristina Huesch or one of our other experienced solicitors here at Alliance Family Law on (02) 6223 2400.

Please note our blogs are not legal advice.  For information on how to obtain the correct legal advice, please contact Alliance Family Law.

Author

  • Ashlea Begg

    Ashlea holds a Bachelor of Business (Accounting), a Bachelor of Laws, and a Master of Legal Practice. She has extensive experience in family law and child protection and has specialist knowledge in matters involving family violence. She has worked in various roles across the NSW Central Coast and Hunter Valley, as well as in Alice Springs and Tennant Creek. She approaches her work with a balance of empathy and pragmatism, and shares Cristina’s interest in finding out-of-court solutions to family law problems.

    https://alliancelegal.com.au/team/ ashlea@alliancelegal.com.au Begg Ashlea
Ashlea Begg

Ashlea holds a Bachelor of Business (Accounting), a Bachelor of Laws, and a Master of Legal Practice. She has extensive experience in family law and child protection and has specialist knowledge in matters involving family violence. She has worked in various roles across the NSW Central Coast and Hunter Valley, as well as in Alice Springs and Tennant Creek. She approaches her work with a balance of empathy and pragmatism, and shares Cristina’s interest in finding out-of-court solutions to family law problems.

Call Now Button