Pet Custody: Who gets the pets during a separation?

Pet Custody: Who gets the pets during a separation?

For many families, pets are integral members of the family. They can often be the first addition to your family or the result of a lot of nagging from your children. Increasingly, families are coming before the court with the custody of their pet being a live issue.

Separating pets from children or their owners can also cause a great deal of stress and another element of tension between parties. It is important to know how pets are treated during the course of separation.

If you have a dispute about pet ownership with someone outside of your household, or you are not sure if you fall under the family law jurisdiction, our article on pet custody outside of the family law process may be appropriate to your circumstances.


How animals are dealt with in Australia

Unfortunately, in Australia, the Courts have limited capacity to deal with pets and there is no legislation as to how to court navigates ‘living arrangements’ for pets.

Instead, the Courts must deal with pets as personal property and in the same manner as other personal assets such as furniture, clothing or computers. This is often a difficult concept for parties to grapple with as they feel a much stronger emotional attachment with pets compared to other personal possessions. In most cases, the Courts will make an order that one party retain a pet in the same order that lists other personal property.


Is the custody of your pet the only legal issue you require assistance with?

If you have a pet which you are seeking to have returned to your care, you may need to make an application to the court for recovery of your pet (similar to the recovery of other personal property). If you have a pet which you wish to remain in your care but are worried someone may make seek for their return, you may wish to make an application to the court for a declaration. These are issues which our litigation / family law team are able to assist you with. If you have any questions or would like to know how to protect your interests as a pet owner, feel free to contact us on 1300 749 709.


Different options to resolve and formalise custody issues over your pet

When pets are involved, there are added considerations when navigating the family law process.

You have various options available to you and we outline some below.

(a) Negotiate with your former spouse

In the first instance, it is always best to attempt to negotiate the living arrangements of the pets between parties because they are the people who know the animal best and know each family member’s individual attachment to the pet. Some recent judicial arrangements have involved the pet remaining with the children and travelling between residences at the same intervals as the children.

If you are unable to negotiate directly between yourselves, you are also able to include the arrangements for your pets in a mediation. This will enable you to decide who the pet is to live with, the time the pet will spend with the other party (if any), who pays for the expenses of the pet and the like. You are then able to reach an agreement; however, this agreement will not be legally enforceable. It is simply a reflection of your intentions. The only legally enforceable way to deal with pets can only be who retains the pet like another asset, not for the daily arrangements for the pet discussed below.

(b) Seek consent orders or prepare a binding financial agreement which include provisions for your pet

If you are unable to agree between yourselves, or if you wish to seek a legally enforceable agreement, which is often the case, you are able to make an Application for Consent Orders or prepare a binding financial agreement which makes a provision for who retains your pet (amongst other property orders). Your pet will be included as property to be divided between the parties. Factors which the court have considered when making orders in relation to pets are as follows:

(i) Who the pet has resided with prior to, during and following separation;

(ii) With whom the animal has an emotional bond with;

(iii) Who has been responsible for the financial expenses associated with owning the pet; and

(iv) Whose name the pet is registered in (however, this factor is only considered if registration was conducted prior to separation and is not ‘self-serving’).

(c) Make an application for property orders which includes your pet

If you have exhausted all other avenues, such as negotiation, mediation and your former spouse is not agreeable to reaching consent orders, you are able to make an application for property orders which include your pet. For more information about the court process, we invite you to read our family law court process article.

The living arrangements for your pet can be a confusing concept, especially when you have a strong emotional connection with your pet. If you require further information or wish to seek assistance in relation to your family law matters, we invite you to contact our family law team to arrange your free initial consultation by submitting an online enquiry or calling us on 1300 749 709.

Article written by Family Law Partner, Reece Ramsden