Divorce or separation has a significant impact on all members of the family, including our beloved pets. Approximately 61% of Australian households have at least one pet and, in the event of a divorce or separation, pet custody can be a significant issue in the dispute due to the considerable emotional attachment we have to our furry friends.

How are pets classified in custody disputes after a separation?

Despite being a beloved member of one’s family, pets are considered a personal property asset under NSW Law. The Family Law Act 1975 (Cth) provides no specific provisions on how pet custody or ownership should be determined in the event of separation. Property settlement principles are applied instead and while we all value our pets emotionally, they are typically not considered to be significant assets in a property settlement. This is unless they have significant monetary value, such as pedigree pets, or are income generating, such as competition/show animals or livestock. Pets that do not fit into these categories are attributed their nominal market value within a property settlement.

Keep in mind that property settlement proceedings in the Federal Circuit Court or Family Court must be commenced within two years from the date of separation for de facto relationships, or one year from the date of divorce for married couples. However, parties can still settle matters by entering into Binding Financial Agreements beyond that time frame.

How would a court handle a pet custody dispute?

The Courts always prefer separating couples to make their own arrangements concerning pet custody. However, when they are asked to make this discretionary decision, the court will take into account any of the following factual considerations:

  • Who purchased the pet and what was the purpose of that purchase?
  • Whose name is the pet registered under?
  • Who has current possession of the pet (including who it resided with before, during and following the separation)?
  • Does one party have a more suitable residence for the pet (we have discussed keeping pets in strata schemes in a previous article)?
  • Is the pet a service animal which one party relies on or will rely on in the future?
  • Who made financial contributions towards the pet – including food or veterinary payments, pet insurance and grooming fees?
  • Who made non-financial contributions towards the pet – including who provided exercise, fed or cleaned up after the pet?

If your child or children have an attachment to the pet, a court may prefer to assign the pet to the primary residence of those children or to move the pet between residences with the children, as it is in their best interest.

The Court aims to resolve disputes in a manner that will avoid further proceedings. A court may make appropriate orders, which could include selling the pet, to distribute its nominal value in the same manner as any other asset, such as a house or furniture.

Davenport & Davenport (No 2) [2020] FCCA 2766

In this recent case, the Husband applied for interim orders for shared custody of the dog which had remained with the Wife following their separation, as he was “suffering pain and separation anxiety by not being allowed to have time” with the dog. The Husband had attempted to create a ‘pet custody agreement’ and to visit the dog numerous times since separation, but the Wife had refused access. The Wife was the registered owner and purchaser, but the Husband claimed he had spent $1,633 in financial contributions towards the dog, including food, vet visits and other supplies. The Wife sought orders to instead adjust the parties’ property interests and to keep the dog as part of the final property settlement; as animals have been dealt with by the Court as personal property.

The Federal Circuit Court of Australia found that the issue was merely the alteration of property interests on an interim basis. The Court held that it did not have the jurisdiction to make the shared custody order requested, as the Family Law Act 1975 (Cth) provides no basis for the shared custody of property, including pets, after separation. The Husband’s application was accordingly dismissed.

What options can Etheringtons Solicitors provide?

Etheringtons Solicitors can assist you with negotiations or mediation regarding the ownership or living arrangements (including time allocations, residence and expense payments) of a pet with a former partner.

We understand that your pets represent more than the asset-based approach the Court has to adopt. We suggest negotiation and mediation whenever possible, as both options are more time- and cost-efficient than court proceedings and allow for greater flexibility in the solution developed for your particular circumstances. These negotiations would need to cover who will care for the pet on which days, how handovers will be dealt with, who will meet ongoing and future expenses, who will be responsible for vet checks and who will make major health decisions – these are considerations not dissimilar to parenting orders.

Once parties reach agreement, they can be formalised by way of consent orders with the Court, along with any parenting or property orders as needed.

If you need further advice or assistance with a pet custody dispute or other Family Law matters please contact one of our experienced solicitors on (02) 9963 9800 or via our contact page.