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Pet Custody: Who gets the pets during a separation?

During a relationship separation parties are often faced by events where they are required to distribute their property and arrange who their children will live with. Linked to this, is an area of family law which is becoming increasingly common, yet faces a deficiency in legislative and judicial consideration, which is when companion animals become involved.[1] In Australia, like many other countries, families consider their animals as part of their family as emotional ties are built.[2] In the circumstances where one party is to receive the animal, Australian law approaches this by identifying the animal as legal property to humans that must follow traditional processes found in the Family Law Act.[3] The following article aims to demonstrate and identify how this course of law operates and identify any strengths and weaknesses it may have. Furthermore, domestic legislation and case law coupled with that of the United States introduces a greater level of understanding whereby solutions to the contradictions caused by the property settlement model verse best interests model can be found.

Legal Property

Legal property is a concept which is extremely wide in its scope with many different classifications depending on the subject property. Companion animals in Australia are currently regarded as legal property to humans similarly to any other tangible item or chattel in a household.[4] This legal status associated with animals is connected to the history founded in common law. Earliest traces of this legal concept can be found in commentaries in the 18th century by English common law jurist, William Blackstone who states the legal definition of property as ‘sole and despotic dominion which one man claims and exercises over the external things of the world, in total exclusion of the right of any other individual in the universe’. [5] To further contribute, the Australian High Court held in the case of Yanner v Eaton[6] that property does not necessarily have to be a concept over a tangible item but rather is an owners relationship with an entity where the law allows them a legally endorsed concentration of power over things and resources. It can be observed that the original concepts behind property remain quite broad and do not specifically refer to animals based on the three levels of government having limited constitutional power to legislate in this area.[7]

In Australia, the Commonwealth remains to have little impact on the legislation directed specifically to animals as property. That being said, one main example can be found in the Commonwealth statute, Competition and Consumer Act[8] which does make specific reference to certain objects as property and does precisely incorporate animals into that definition, however this does not particularly aid in family law matters. In addition to this legislation, the Companion Animal Act[9] does give guidance to how an individual may vest ownership over a companion animal and that is usually by means of registration by the owner or the person which the animal is kept with or harboured. In order to alleviate animal welfare issues associated to property, Australia has developed an overarching national approach linked to a number of animal law topics which includes animals in family law. The Australian Animal Welfare Strategy (‘AAWS’) recognises that ‘[a]ll animals have intrinsic value’ and that all non-human animals are sentient and should not be compared to inanimate objects which fail to feel things such as pleasure and pain. [10] Although this demonstrates a link to animal welfare and protection, it remains to be considered more of a philosophical and ethical system that ultimately vests little power to legal property rights of humans over their animals in general and especially under family law during a separation.

Pet Custody

During the separation of two parties in a relationship it is important to understand the legal framework behind the distribution of any type of property in family law. In Australia, the current law associated with property is found from policy generated from historical context. Although property distribution was originally recognised in matrimonial property matters, modern context allows de facto relationships to fall under statutory schemes as of 1 March 2009 in all Australian jurisdictions other than South Australia and Western Australia.[11] Property prior to the 19th century rendered a wife incapable of owning property however equity has subsequently developed this law to introduce legislation allowing separate property rights and the legal ability for both husband and wife to gain and own property.[12] This however remains subject to the Family Law Act[13] which holds provisions for distributing property during a separation which also includes identifying who the companion animals will go with, often referred to as ‘pet custody’ similar to ‘child custody’.

Pet custody during a relationship breakdown is often one of the last things to be considered by the parties and the court, and in Australia there is limited case law or academic commentary on this issue.[14] This deficiency is often criticised by academics, as it should be given more attention on the basis of the large number of companion animals involved. In Australia there are 33 million companion animals with approximately 59% of all households having the minimum of a cat or a dog. So the circumstance that there is more companion animals than humans coupled with the divorce rates in Australia (which are now between 40 and 50 percent from 10 percent in 1960[15]) would appear to identify an issue that arguable requires more attention by the courts. In the dissolution of a de facto relationship or marriage, the Family Law Act[16] remains the core legislative power by the courts to make orders in relation to property, spousal agreements, maintenance and children.

Animals Rights

The Federal Circuit Court of Australia and the Family Court of Australia both hold extremely broad powers and can be argued to approach property settlement in a system that is effective in some respects and lacks in others. This is firstly demonstrated under section 79(1)[17], where both courts are given powers which allow them to make ‘any orders it thinks fit’ to alter the interests of the parties in property. Additionally, the term ‘property’ is broad in its meaning by which it states that it is in reference to ‘property to which those parties are, or that party, as is the case may be, entitled, whether in possession or reversion’.[18] The definition of property fails to define property with reference to the objects constituted as property however focuses on the party’s entitlement legally to the object and therefore can make identifying property, especially companion animals subject to a grey area. In addition to making orders that the court deems fit, section 79(1)[19] approaches property settlement in a four step approach, which firstly identifies the property and its monetary value, secondly, identifies the contributions made by the parties, thirdly, identifies other indicia such as ‘future needs’, and lastly makes an order based on an overall assessment whether it is just and equitable. It appears that the first and last step are generally the most relevant when making property orders for a companion animal as the courts often attempt to put a monetary value to the animal or ‘liquidate’ the animal and then assess the animal alongside the other property of the relationship to generate a just and equitable outcome. Legal academic, Tony Bogdanoski argues that the third step especially is over looked by the courts which focuses on the contributions, and this would entail the financial and non-financial contributions to maintaining the animal on a daily basis being taken into more consideration.[20] Nevertheless, the courts do not have to follow this four-step approach and can make its decision based on s 79(1).[21] To allow further understanding, the limited number of Australian cases on this topic can be compared and contrasted to international cases and their legal system.

Australian Cases

Australia’s legal position associated with companion animals is arguably not an area of law that has received a lot of attention in cases and has both comparable and different outcomes in other countries. One of the main reasons in Australia for limited cases is due to separating litigants participating in mandatory alternative dispute resolution, which often resolves pet custody disputes without entering the court system.[22] Three main Australian cases discuss distinctive focuses when dealing with companion animals during separation. Walmsley and Walmsley No 3[23] discussed the first step of the four-step approach, in which the pedigree dogs were ordered to stay with the wife and that she pay her husband what they were valued at which was $3000. Despite the third step being overlooked as discussed above, Wacket and Wacket[24] does identify adjusting a property settlement to allow for costs associated with maintaining an animal. And lastly, the case of Jarvis and Weston[25] demonstrates property settlement involving a dog owned by a husband and attached to the child of the marriage. The court ordered in this instance that the dog to be given to the wife who received custody of the child. The husband argued that the court had no jurisdiction over the animal however the court concluded at paragraph 22 that regardless of whether or not the court has jurisdiction over the dog, ‘The boy is attached to the dog. The dog is to go with the boy’. This demonstrates as discussed earlier, that the court has powers to make any order it thinks fit. In addition, this judgement can be reasoned to have failed to take into consideration the welfare of the dog, and yet uphold the welfare and wishes of the child which happened to involve the dog.

United States Perspective

In comparison to Australia, the United States has produced a lot more consideration as to the outcomes associated with parties separating, yet this appears to change depending on the state. It can be identified that the United States, unlike Australia has dealt with cases involving ‘visitation rights’ and ‘custody rights’ of animals similarly to children. The leading case Bennett v Bennett[26] on first instance ordered the husband receives full custody and the wife receives visitation rights. On appeal the case undertook a deeper level of reasoning and analysis and returned to property principles over the dog which were guided by attitudes in mind of floodgate effects which stated ‘Our courts are overwhelmed with the supervision of custody, visitation, and support matters related to the protection of our children. We cannot undertake the same responsibility as to animals.’[27] Cases like such have developed the notion like children (whether followed or not), that decisions should be made in ‘the best interest of the animal’, yet other states such as Iowa have concluded that dogs are property and that on this basis the court ‘did not have to determine the best interests of the pet’.[28] A number of courts have taken the approach to remedy the legal owner or original owner of the animal, for example found in Arrington v Arrington[29] whereby the Civil Court of Appeals of Texas recognised Mr Arrington owned the dog before the relationship and that the dog is to be treated like personal property and given back to Mr Arrington who possessed legal title. It appears from these cases that the United States has explored the issue of animals during separation, yet has either changed its view or remained mindful and or hesitant to progress from original concepts much like Australia.

1 step forward, 2 steps back

The development of law associated with animals during a relationship separation has been seen to remain at a standstill in Australia with its core principles embedded from history and lack of guiding statute. As identified, companion animals remain at a property status much like a chattel, with the Australian Animal Welfare Strategy attempting to implement an impression which draws the attention away from animals as property but rather sentient beings distinguishable from that of other property. Regardless of this, when dealing with a property settlement, animals to the relationship are dealt with according to the Family Law Act,[30] which, as explored, is broad and was not legislated to specifically encompass animals, so has therefore contributed to issues and lack of concern when finding solutions to who receives the animal versus children. The four-step process, although designed to give structure for the judge during their decision making process can be overruled by their power of what they deem fit and this is demonstrated in Australian case law. With comparison to the United States, it can be seen that it has progressed forward in some regards, and then taken steps back, with a focus to uphold original property concepts and legal status over animals. It would appear that the potential floodgate effects hinder both Australia and the United States. Furthermore, problems may be associated with the possible contradiction between animals dealt with according to a property settlement or a best interests model equally to children. In summary of this area of law, the Texas First District Court of Appeal have stated that ‘Because of the characteristics in general and of domestic pets in particular, [the court] consider(s) them to belong to a unique category of ‘property’ that neither statutory law nor case law has yet recognised.’[31] As identified by this statement, this fundamental reasoning should be adopted in Australia, with its legislation progressing to encompass animals as a new category of property that will in turn find a solution to the ineffective and or disregarded systems in place.

For more information and advice about this topic or any other family law matters, please do not hesitate to contact us. 

[1] David Favre, Animal Law: Welfare, Interests and Rights (Aspen Publishers, 1st edition, 2008) 67.
[2] Deborah Rook, ‘Who Gets Charlie? The Emergence of Pet Custody Disputes in Family Law: Adapting Theoretical Tools from Child Law’ (2014) 28(2) International Journal Law Policy Family 177-193 <http://lawfam.oxfordjournals.org.ezproxy.bond.edu.au/content/28/2/177.full>.
[3] 1975 (Cth).
[4] Peter Sankoff, Steven White and Celeste Black, Animal Law in Australasia: Continuing the Dialogue (The Federation Press, 2nd ed, 2013) 84.
[5] William Blackstone, Commentaries on the Laws of England (Garland Publishing, New york, 12th ed, 1978; first published in 1765-1769) 1-2.
[6] (1999) 201 CLR 351, 366.
[7] Peter Sankoff, Steven White and Celeste Black, Animal Law in Australasia: Continuing the Dialogue (The Federation Press, 2nd ed, 2013) 87.
[8] 2010 (Cth).
[9] 1998 (NSW) s 7(1).
[10] Department of Agriculture, Fisheries and Forestry, The Australian Animal Welfare Strategy (2008) 18 <http://www.australiananimalwelfare.com.au/app/webroot/files/upload/files/aaws-strategy-jun08.pdf>.
[11] Lisa Young and Geoff Monahan, Family Law in Australia (LexisNexis Butterworths, 7th ed, 2009) 587.
[12] Ibid, 588.
[13] 1975 (Cth).
[14] Alex Bruce, Animal Law in Australia: An Integrated Approach (LexisNexis Butterworths, 1st ed, 2012) 139.
[15] Australian Bureau of Statistics, Australian Historical Population Statistics – 7.Marriages and divorces, Crude marriage rates, States and Territories, 1860 onwards (2004) <https://www.dss.gov.au/sites/default/files/documents/social_change_aust_families.pdf>.
[16] 1975 (Cth).
[17] Family Law Act 1975 (Cth).
[18] Ibid, s 4.
[19] Family Law Act 1975 (Cth).
[20] Tony Bogdanoski, ‘The marriage of family law and animal rights : how should Australia family law approach the rise of ‘pet custody’ disputes?’ (2006) 31(4) Alternative Law Journal 216-220.
[21] Family Law Act 1975 (Cth).
[22] Tony Bogdanoski, ‘Towards an Animal Friendly Family Law: Recognising the Welfare of Family Law’s Forgotten Family Members’ (2010) 19(2) Griffith Law Review 197.
[23] [2009] FamCA 1209,6-7.
[24] [2010] FamCA 154.
[25] [2007] FamCA 423.
[26] (1995) 655 So 2d 109.
[27] Ibid.
[28] Marriage of Stewart (1984) 356 NW 2d 611, 613.
[29] (1981) 613 SW 2d 565, 569.
[30] 1975 (Cth).
[31] Beuckner v Hamel (1994) 886 SW2d368.