Due to the emotional bond we have with our pets, many of us regard them as integral and valued members of the family. But did you know that the Family Law Act 1975 (Cth) does not have a specific provision relating to pets?
This means that if you and your former partner are unable to reach agreement as to what happens to your pet, the Federal Circuit and Family Court of Australia (“the Court”) will treat your pet as part of the property settlement proceedings and make orders accordingly.
If the pet was for the benefit of children of the relationship, the Court will usually order the pet to live with the children. The pet will then follow the children between households, and their food, vet bills, and other expenses are usually shared equally between the parties.
If it is found that the pet was not purchased for the benefit of the children then the Court will be required to consider who the legal owner is. Documents such as receipts indicating who purchased the pet, bank or credit card statements, and any other relevant documentation will need to be put to the Court. Registration alone does not prove legal ownership.
If the family pet had been purchased by one party and then gifted to the other, the Court will usually make a finding that the party who had received the pet by way of gift will be able to ‘keep custody’ of it.
In the 2017 case of Downey v Beale [2017] FCCA 316, both parties wished to retain the family dog. There was no dispute that the husband had purchased the dog and had registered it in his sole name. The wife asserted that the husband had bought the dog for her as an early birthday present. Examining the wife’s bank statements and other documents relating to the payment of expenses of the dog, it was clear that she was the dog’s primary carer. The Court accordingly made orders that the dog remain in the wife’s possession and in her ownership.
Reaching a shared care arrangement may seem like an ideal solution, but you need to be mindful that just like with children, you will be required to continue seeing your former partner on a regular basis for the duration of your pet’s life. In order to minimise conflict with your former partner and for the arrangement to work, it is important that the arrangement is clear. Factors to consider include:
- What days and times will each party have the care of the pet?
- What happens when one party goes away on holiday?
- How will ongoing expenses be shared?
- Who will be responsible for taking the pet to the vet and how will any medical decisions be made?
- How will ‘end of life arrangements’ be handled?
It is important to note that the Court does not have the power to make orders in respect to shared custody of the family pet. In the 2020 case of Davenport v Davenport (No. 2) [2020] FCCA 2766, the husband applied to the Court for an interim order that he be granted “shared custody” of the family dog.
The husband’s application was dismissed with the Court observing that whilst it was “aware that for many people pets are regarded as members of the family… there is no provision under the Family Law Act and no specific legislation that deals with issues such as the “custody” of a pet whether that be a dog, cat, bird, lizard, fish or any of the wonderful creatures that we share the planet with that would empower a Court to make orders for shared custody of a pet”.
As can be seen by the above, there is no simple answer when it comes to determining who is to retain the family pet. If you and your former partner cannot agree, then the Court has the power to make orders after careful consideration of all the circumstances.