Divorce! Who gets the dog? What happens to pets after human separation

by Michael Benedetti, Senior Associate

We all find the perfect person, get married (or more modernly, co-habit) and live happily ever after – Right? Unfortunately not!

For family lawyers, under the Family Law Act a de facto relationship exists where the persons involved:

Divorce and separation amongst couples are almost as common an outcome as staying together these days and so everyone needs to consider what to do with their assets on separation – sell the family home and car; share the furniture; but what about the pets?

Pet Problems Solved has been talking to 4 lawyers about their experience with people and their pets after separation and divorce. Here are our questions and their responses…

Q. Is shared care of a pet desirable for most separating couples or do most tend to agree who gets the pet?

A. As much as our pets feel like our children and are part of our family, pets are actually property. The Family Court treats pets as property, not as children. So shared care is not an option, unless it’s very informal and agreed between the separated couple. Most people decide between themselves who will keep the pooch. (Marie Fedorov of Fedorov Lawyers

And Prue Burrell, of Burrell Family Law says “To be clear, in the eyes of the law, a pet is property, so the considerations for shared care with children are not relevant, from a legal perspective. However, in my view they do provide a helpful framework for raising some questions which might assist pet owners in negotiating a resolution of living arrangements for their pet post-separation.

Some relevant questions might be – Is it really in your pet’s best interests to be living between two households? With different routines? Different sleeping arrangements? Different housemates?

How will you reach decisions about your pet’s health? And who will pay for the vet? Can you communicate and co-operate effectively to ensure your pet’s health and wellbeing is the priority? Is it practical for you to be doing pick-ups and drops offs of the pet around work and other commitments? How far apart do you live? What’s the commute time? Do you have suitable accommodation for the pet?

After reflecting on these questions, you may have a better idea of whether shared care is something that is really best in your situation. It is also important to remember that depending on the age of your pet, this may be a long-term arrangement, so even if it seems achievable now, will that be the case in 1 year? 5 years?

All these complexities make it more common, in my experience, for one person to keep the pet. That said, I have come across situations where people are able to share care of a pet, but again a high level of communication and co-operation is required.”

Q. What factors would decide who gets to keep the pet?

A. “It depends who is deciding. If it is the court deciding, for legal purposes in Australia, the pet is treated the same as any other asset. Some factors the courts have taken into account include whether the pet was acquired prior to the relationship, who paid the vet bills, whose name the pet was registered in and who the pet stayed with after separation.

“As a pet owner, my considerations would include: who spends more time with the pet, who is able to care for the pet, whether there are multiple pets that can’t be separated, and how the pet would react if separated from one of you. ” (Kasey Fox, of Farrar Gesini Dunn)

Q. Do people end up in Court, mediation or anything else over their pet?

“Cases involving arrangements for pets can and do end up in the Family Court. It’s important to note in my experience they are often as part of an overall property settlement, rather than just a case about the pet. There was a recent Family Court case which looked at the issue of pet ownership. In that case, the couple had resolved all property issues, except ownership of their dog. They wanted the Courts to determine who should keep it.

“It is well accepted that Courts are under-resourced and there are often lengthy delays in matters being resolved. In light of the demands on the Court system, in my experience, Judges would prefer that parties sort out disputes about chattels (including pets) themselves.” (Prue Burrell)

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