Pet Custody; Separation and Pets in Australia

Separation is a difficult time and there are so many things to consider. For many families, pets are treated and loved like any other member of the family. Understandably, you may be wondering what will happen to your pets after separation?

Unfortunately, the Court does not consider pets in the same way they would consider children of separated couples. Instead, pets are treated like any other household item and can be included in the property pool. It may seem cold to treat your pets as just any other asset on the balance sheet, but the Family Law Act makes no provision for the ‘best interests’ of your pet to be considered.

The Court may make orders determining which party will maintain ownership of your pet, but this can be only one party.  The Court does not have the power to make orders reflecting a shared care arrangement for your pets.

In determining who should retain the pet there are number of things to consider:

• Which party acquired and paid for the pet;
• Which party is listed as the registered owner of the pet with council;
• Which party cared for the pet;
• Which party paid for food, grooming and veterinary care; and
• Any individual emotional attachment to the pet, especially where children are involved.

Whether it is a dog or a rare kind of bird, when your pet has a significant monetary value, the Court may use the value of the pet when determining the property pool and how this property should be distributed amongst the parties.

However, none of these factors are determinative and each matter will need to be evaluated on a case-by-case basis. Judges have been historically incredibly hesitant to make orders to reflect which party is to retain possession of a pet following separation. There is only a small amount of case law on this subject, but it is a developing area. 

Despite the Court’s approach to the treatment of pets after separation, there is no reason you cannot reach agreement with your ex-partner to reflect an arrangement that is in the best interests of your pets and your family, avoiding the time consuming and costly court process.

If you are concerned about your pets following separation, please contact our office and arrange a time to discuss with our family law professionals.