Many consider their pets to be part of the family, so what happens to the pet after separation?
The law in Australia does not recognise pets as distinct from any other form of property and are considered ‘chattels’. As pets are not specifically mentioned in the Family Law Act 1975 they fall under the Court’s power to make Orders regarding property. The usual process is for the property pool of the parties to be established by agreeing upon valuations and determining how and in what percentage that property should be divided. This is where the lack of provisions in the Act for pets causes problems. How can someone possibly place a monetary value on a beloved dog or cat? Fortunately, the Court has acknowledged that pets should be treated differently to the set of collectable spoons, with Judge Harman stating in Downey & Beale that “one would hope, in this neoliberal world that we have not yet come to the point where even love and affection are commoditised”.
Typically, the court will look to the following factors:
- Who was the primary care-giver of the pet
- Who the pet’s name is registered under
- Who paid for the pet’s food and medical costs & afford their future expenses
- Who has appropriate accommodation for the pet
- Whether the pet was given as a gift to one of the parties
- Emotional attachment of each party and treatment of symptoms of mental illness
These factors are not necessarily weighted equally, with care of the pet being substantially more persuasive for the court than the pet merely being registered under a party’s name.
Despite some not drawing a distinction between them, the Court cannot treat pets like children and use its power to determine custody of the pet, nor can it Order another party to help pay maintenance costs to assist with the pets living expenses. However, the Court has considered the relationship between children and their pets, and in appropriate circumstances made Orders for the care of a pet to be transferred at handover along with a child. The court has made such an allowance to comfort the child and reduce the stress and instability they experience in changing between residences. In Jarvis & Weston the court found that where an Order is made that a child live with only one of the parties the pet will follow the child.
Whilst the Court will not make maintenance Orders for pets as for children and spouses, in the case of Wacket & Wacket the Court provided that property settlements can be adjusted to reflect the ongoing cost of caring for the pet.
Due to the Court’s limited ability to make Orders regarding pets, it is often best that the parties make an independent agreement rather than leaving the fate of your pet up to the Judge.