A Guide to Pet Custody Laws Australia

Pets are beloved family members for many Australians nationwide.

Although when relationships break down, the question of ‘who gets to keep the pet?’ may become a point of contention during these difficult times in the separation process.

Let’s explore the legal framework surrounding the complexities of pet custody, including :

• Practical advice for pet owners who have separated
• Who rightly has ownership of the pet
• Australian laws regarding pet ownership
• How to avoid common mistakes with pet ownership

At Unified Lawyers our team of highly trained divorce lawyers in Sydney, can help resolve pet ownership disputes, help you gather and fill out required documentation, represent you in court if required, and guide you through the process.

The Legal Status of Pets in Australia Family Law

The legal concept of “pet custody” does not exist in Australia.

Instead, pets are considered as property under the law, similar to an item like a vehicle or furniture.

This classification means that pets are not considered as dependents in need of custody arrangements following a separation or divorce, but rather an asset to be shared or divided between the couple.

Pet custody is not specifically covered by The Family Law Act of 1975. As a result, unlike with children, the courts do not have the power to mandate shared custody of pets.

This legal reality often comes as quite a surprise to pet owners, who see their animals as part of the family rather than as possessions.

When determining pet ownership in the event of a separation the courts will consider factors including :

• Who purchased the pet?
• Who feeds the animal?
• Who pays for the insurance policy?
• Who cares for the pet, including attendance to vet appointments?
• Whose name is it registered in?

Who Owns a Pet in a Breakup?

Despite the legal definition and classification of pets as property in Australia, there are several approaches couples can take to determine who owns a pet, in the case of a separation:

– Informal Contracts :

Many couples decide to make their own plans for sharing pet care, during separation.

This may involve having shared care of your pet/s, by entering an alternate week or weekends arrangement.

– Mediation :

Couples who find it difficult to negotiate directly can seek the help of a mediator to facilitate discussions and reach a mutually agreeable plan regarding pet care.

Taking into consideration the pet’s interest, safety and care, our knowledgeable team at Unified Lawyers can support you and provide legal advice to help you come to the best agreement for your animals.

– BFA’s (Binding Financial Agreement) :

In the case of a breakup or separation, these legal documents are offered as pre-nuptial agreement and may contain clauses pertaining to pet ownership.

The inclusion of pets in a BFA prior to entering into a relationship and/or during the relationship can provide clarity and avoid future disputes in relation to the pet/s

– Court Intervention :

As a last resort, if a couple is unable to come to an agreement, the issue may be taken to court as part of a property settlement proceeding.

It is important to note that the courts will not make orders for shared custody of pets in Australia.

What Happens to Pets When You Split Up?

The following should be taken into consideration when making post separation, pet care arrangements :

– Your Financial Responsibilities :

Examine your capacity to bear the entire costs of pet ownership, including insurance, food and veterinary care.

– Living Situation :

Determine if your new living arrangements are appropriate for your pet/s.

For example, a very large dog will require a house with a yard, rather than a small apartment where the animal’s enjoyment of life and physical environment will be affected.

– Children’s Attachment :

If children are involved, you should consider the pet’s role in their lives and whether the pet should follow along with the children’s custody plan.

As animals can become very attached to children, making the most practical arrangements between children and pets can help ease further difficulties with separation.

– The Welfare of the Pet :

You should always prioritise the well-being of the pet in any given arrangement.

Some examples for consideration may include taking into account familiar surroundings, daily routines, environment comfortability, connection with certain family members and other pets.

Legal Considerations in Pet Custody Disputes

Although pet custody is not recognised by Australian family law per se, the following legal considerations may be relevant in a dispute:

The Law of Detinue :

This particular principle governs the ownership and control of personal property.

It is defined as when someone wrongfully detains a person’s property, and also unreasonably refuses to return the property to its rightful owner.

In the case of pet ownership this legal principle can be applied. You can gain further legal counsel from our professional team at Unified Lawyers, so we can help support you and protect your rights for pet ownership.

Companion Animals Laws Across Australian States

The following legislation governs the ownership, registration and control of companion animals, including procedures that can be relevant in resolving disputes over pet ownership.

An overview between the following Australian states :

These laws, such as the Companion Animal Act of NSW, are important points of reference when handling pet ownership disputes.

Although courts may also take into account proof of who paid for or provided care for the pet, the registered owner listed with the local council and the individual who microchipped the animal are considered as strong indicators of ownership.

Avoiding Pet Custody Issues

To prevent further disputes over pet ownership separated couples can consider :

– Creating a formal pet custody agreement :

Write a formal agreement that details your pet’s care plans, financial obligations, and decision-making arrangements.

– Including pets in your BFA (Binding Financial Agreement) :

If you are getting married or entering into a de facto partnership, think about including provisions for pet ownership in your BFA.

– Maintaining Detailed Records :

To provide a transparent history of ownership and care, keep tracks of pet related expenses, veterinary visits, and registration details to establish a clear history of ownership and care.

– Seek Legal Advice Early :

Chat with our family lawyers at Unified Lawyers, we’re experienced in pet related disputes, governmental laws. We can help support your case and your individual circumstances and will guide you through the process.