Separating is hard enough without the stress of who gets the beloved pet…let us help you simplify things.
Property settlement following the breakdown of a marriage or de facto relationship in Australia is governed by the Family Law Act 1975 (‘the Act’). The Act does not have any provision which relates specifically to pets. Rather, the Act empowers the Court to make orders about how property is to be divided between the parties to the relationship, orders as to maintenance and orders as to children. Pets are treated as property, similarly to any other material household asset such as furniture or a car.
So how does a Court decide who gets to keep your much loved family pet?
In determining property settlement, the Court will apply the four step approach espoused by the Act. Whether your pet is treated as an asset with monetary value will depend on individual circumstances, for example, whether the pet is a purebred which would be anticipated to have monetary value if listed for sale. If the pet does have monetary value, then the party retaining the same will normally have to compensate the other party for their ‘share’ of that ‘asset’.
In determining who gets to keep the family pet, the Court may also consider factors such as:-
• who has the financial means to pay for the ongoing costs of maintaining the pet (including costs such as feeding, veterinary care, grooming, etc);
• who has maintained the pet during the relationship and in the period between separation and litigation (noting that the party who has retained and cared for the pet in the period following separation is often in a stronger position than the other party);
• the lifestyle of each party and whether this allows them to adequately care for the pet (noting that this is particularly relevant where one or both parties are to move residences, as it may not always be possible to secure accommodation that allows for pets);
• if there are children of the relationship, the Court may also have regard to the children’s attachment to the family pet in deciding who should retain the pet.
As the family pet is treated as a legal ‘thing’ and not a being in the context of family law, the Court will allocate the family pet to only one of the parties. The Court will not make orders for shared ownership of a family pet, as one of the fundamental principles of property settlement under the Act is to finally determine the division of assets between the parties. Making orders that allowed for shared ownership would leave open the possibility of future litigation if one party breached the order, for example by retaining the family pet in their care longer than stipulated in the orders. We often see such litigation arising in the context of parenting matters, where one parent refuses to allow the other to spend time with the child or otherwise keeps the child in their care for a period of time longer than is permitted in parenting orders.
As is evident, there will be one ‘winner’ and one ‘loser’ if a Court is left to make orders about who gets to keep the family pet. To avoid the uncertainty as to outcome, and indeed the cost and stress of litigation, we suggest that you should attempt to negotiate an agreement about who keeps the family pet with your former spouse. Such an agreement could allow for shared ownership, with each party having care of the pet for alternating weeks and being solely responsible for the costs of the pet during their week. Understandably, such an arrangement will not work for all separated couples, particularly in the context of domestic violence relationships, and may not be appropriate for all pets; it is generally best suited to dogs who are more ‘mobile’ than for example, cats, and may not be suited to more anxious dogs.
In any event, we suggest that you should seek legal advice as soon as possible. We provide an initial 30 minute appointment at no charge and will be able to provide you with individualised advice about property settlement, including advice about deciding and negotiating who will keep the family pet.
If you want further advice regarding separation and a beloved pet please contact Lindbloms Lawyers on 8357 7611, we have experts who are happy to help you through all the steps of separation.