How Does Pet Custody Work in Family Law?

Anyone who has had a pet before knows how important their role in a family can be. Many of us treat our pets as if they are our children or even our siblings. And while they are considered to be another family member, when a relationship ends, the way the ownership of a pet is determined and managed differs a lot from that of how child custody and parenting matters are decided.

You may be surprised to learn that pets are considered to be property under the Australian family law system. Following a separation, if a couple has children, they need to make arrangements for their care in accordance with the best interests of the children. If a couple has a pet, where the pet will live and who will own the pet may be determined as part of the property settlement process.

In this piece, we’re going to delve into the topic of pet custody and separation, including the factors that are considered as part of the property settlement process, the options available for determining your pet’s future, and ways you can potentially avoid pet custody becoming a problem in your future. So, if you want to know who gets the dog in a separation, keep reading.

Pet Custody and Property Settlements

While your pet may be treated like any other member of the family, when it comes to the law, a pet is property in Australia. So, what does this mean?

If you need to rely on the legal system to determine your property settlement, including arrangements for pets, then the property settlement principles set out under section 79 of the Family Law Act 1975 should be applied.

The principles that are taken into account include factors such as direct and indirect financial contributions made by each of party of the relationship, other non-financial contributions made by each person, earning capabilities, and the future needs of each party.

In relation to pets, some of the factors that could be considered in determining the ownership of the pet include:

• • Who purchased the pet;

• • Who cares for the pet;

• • Who feeds the pet;

• • Whose name is the pet registered in; and

• • Living arrangements and capabilities of each party in being able to care for the pet.

Pet Custody in the Courts

While pet ownership is very common in Australia – in 2020 it was estimated that 62% of people in Australia owned at least one pet – determining pet custody in the court after a relationship breakdown is not very common, with many people coming to a decision outside of court.

However, while there haven’t been many cases where pet ownership has been decided by the court, there are many factors a court may take into consideration when making their decision, including:

• • Who bought the pet;

• • Whose name the family pet is registered under;

• • Whose details are on the microchip records for the pet;

• • Who was responsible for the medical costs of the pet;

• • Who was responsible for the day-to-day costs of the pet;

• • Who was the main caregiver for the pet, including walking, bathing, and feeding;

• • The work commitments of each party and their ability to care for the pet ongoing;

• • The financial capacity of each party to care for the pet;

• • Living environment for the pet.

Factors like who bought the pet and whose name it is registered under may seem like determining factors in pet ownership matters, however, these factors provide guidance, and other factors, like who provided day-to-day care of the pet, are still important in the final decision.

This can be seen in the case of Downey & Beale FCCA 316 in 2017. In this case, the husband had purchased the dog during the marriage and at the time of the dispute, had registered ownership of the dog. The wife claimed that the husband purchased the dog for her as a gift and since its purchase, it had lived with her at her parent’s home. She was also able to provide evidence that she had paid for most of the day-to-day costs for the dog, including food, vaccinations, toys, and even operations. The court determined that the wife was the owner of the dog as she had made significant financial contributions, paying for the majority of the dog’s daily expenses, as well as having provided care to the dog daily. The husband had also registered the dog under his name only after the wife had provided an affidavit asserting her ownership of the dog. The husband was ordered to transfer the registration of the dog to the wife by the Court.

Things to consider when working out what happens to your pets after a breakup

If you’re currently in the difficult position of having to decide what will happen to your pet because your relationship has broken down or you’re considering ending your relationship and you have pets, there are a number of things to think about when it comes to deciding what you should do with your pet after your relationship ends. Some things to consider include:

• • Do you both want to be involved with your pet ongoing? If you’re both determined to remain in the pet’s life after your breakup, you will need to come up with an arrangement that allows you to facilitate this. This will also mean that you will need to be in your former partner’s life as long as your pet is still alive. You will also need to ensure that you agree on how decisions regarding your pet’s health will be decided.

• • Does the pet have a stronger bond with one person? As painful as it may be to say goodbye to a pet, if they have stronger bond with your former partner and they are able to take care of them, this may be the best option for your pet.

• • Do you have children? If you have children, depending on the relationship your kids have with your pets, this might provide further guidance with how you will manage pet custody in the future. If you and your ex-partner have parenting arrangements where the children alternate time at each parent’s homes, then you could consider swapping the pets at this time too. Or if one parent has the children majority of the time, then the pet may stay with that parent and the other have visitation (if they wish to remain in the pet’s life). Children often have special relationships with the family pet.

• • Are your new living arrangements suitable for a pet? If your new living arrangements involve you living in a small apartment, but you have a large dog, then this might not be the best living arrangement for your pet. As heart breaking as it can be, if the home environment isn’t right for your pet, then having custody of them may not be in their best interest.

• • Are you financially able to take on the responsibility of a pet alone? Owning a pet comes with a lot of costs, so you need to ensure you’re in a position to be able to afford taking care of them financially.

Like any property settlement matter, there is no one-size-fits-all solution when it comes to pet custody after a breakup. The above factors can provide guidance in finding the right solution for your circumstances. Ultimately, you need to do what is best for your pet.

Can pet custody issues be avoided?

There are some steps you can take that may help you avoid pet ownership issues from occurring, including:

Ensure ownership is clear

Whether you’re entering into a relationship where one person already has a pet or you and your partner are considering getting a pet, coming to an understanding or informal agreement about the ownership of the pet could help you in the event of a relationship ending. This might include determining whether the pet is registered under one person’s name, who pays for various things to do with the pet and roles each person will play.

Binding financial agreement

You and your partner could come to a formal agreement about what will happen to your pet (and other property) in the event of a breakup. A binding financial agreement can be made between the parties to the relationship at any point, whether it’s prior to marriage (a prenup), during the relationship, or even after. It means that you can come to an agreement together without the intervention of the courts.

Have a serious conversation before getting a pet

While most people do not enter into a relationship expecting it to end, it is a very real possibility. So, if you’re considering getting a pet with a partner, having a serious conversation about all aspects of pet ownership, including what happens to the pet if the relationship does end, is vital before diving into becoming a fur parent.