Arguments about the custody of pets post separation

Arguments about the custody of pets post separation

An argument which comes up from time to time following relationship breakdown is who gets to keep the family pet.

In short, the rules which apply to arrangements for shared care of children do not apply to pets. In fact, in the eyes of the law pets are classified as property to be dealt with in the same manner as vehicles or household items. The emotional aspects of our relationships with our pets are seldom taken into account.

If a dispute is taken through the Family Court (as opposed to a straight property dispute taken through the Magistrates Court) then the court has the power to (amongst other things) alter the property interests of the parties. In practical terms, a pet which is found to be legally ‘owned’ by one party may in fact then be awarded to another party in family court proceedings. This could be, for example, because that other party cared for and looked after the pet on a day-to-day basis whereas the other party had a much lesser involvement with the pet, despite being the legal ‘owner’.

Because the court attempts (wherever possible) to make orders resolving a relationship property dispute on a final basis, in the absence of consent between the parties, orders sharing ownership or custody of a pet are unlikely to be made.

Further, in determining disputes about ‘ownership’ there is no hard and fast rule as to what determines who has the better claim to the pet. The court will consider a range of factors, such as who paid for the pet, whose name is it registered and/or microchipped to, who paid for food, accessories and vet bills etc, and who cared for it and in what proportions.

Furthermore, where the separation occurred some time ago, the court will also consider who has had the pet post-separation. If that period is lengthy, then there may be a presumption that the person who has had the pet in his/her care should keep the pet on a final basis. In a similar vein, if the pet is a ‘family’ pet and the children of the relationship are strongly bonded to it then the court may be persuaded that it ought to stay in the household where the children spend the majority of their time.

Ultimately, although the Court can (and does) make decisions about pets, reaching an agreement without the need for the court to be involved will almost certainly be more efficient and cost-effective for you. A final point to keep in mind in this space is that there is also recent commentary from the court in a matter involving a pet which stated: ‘It is somewhat alarming that the parties could not resolve this matter and have spent well in excess of the cost of a new dog on preparing affidavits and arguing about the matter.’ In other words, arguing over a pet through the Family Court may ultimately cast a party in a negative light before the presiding judge and count against that person in the Family Court proceedings.

Finally, if you have read this far and think that you will need some practical advice about your situation, then now is probably the time to get in touch. Austral Legal can help and we offer an initial discounted 30-minute SmartMove appointment for $80 by phone or in person at our office to discuss your situation.

Bookings can be made online through our website or simply by phoning the office 08 9745 9550. Once we have a handle on what is required, we may well be able to offer a fixed fee for any further legal services, giving you cost certainty from the start. Austral Legal. Practical advice.