19 Dec Separation, Divorce and Pets: Legal Considerations for Animal Lovers
When a couple is considering separating or divorcing, one of the first things on their minds will be the care arrangements for their children. But what about their furbabies? What happens to a couple’s beloved pets after a separation?
Unlike with children, the legal position on pets is not always certain. It’s important to understand how the law treats family pets so that you can ensure their continuity of love and care despite the breakdown of a relationship.
So here are the Australian legal considerations regarding pets and how you can best ensure their care when separating or divorcing.
Separation, Divorce and Pets: Legal Considerations for Animal Lovers
Pet ownership is a huge part of life in Australia. In fact, there are almost 29 million pets in Australia – more than even the human population of 25 million. Three out of five households have a pet, which equates to over 5.9 million pets in our borders. And that means that the majority of separations and divorces will also have a pet to deal with.
Pets under Australian law
Under Australian law, pets are not treated like children. Instead, they are considered property under the Family Law Act 1975 (the Act) in the same way that your car, furniture or shoes are considered property. More specifically, they’re considered the property of the person who purchased them from the pet store, rescue or breeder.
Pets as property
Because pets are considered property under the Act, they are ‘divided’ in the same way all the assets in your property pool are ultimately divided. If you and your ex-partner cannot agree on who gets to keep your pet and seek an order from the court, then the court will approach the issue just as it would any other item of shared property.
As with all the property in the property pool, when it comes to separation, divorce and pets, the court will take into consideration both the contributions and needs of each party in order to reach a fair and equitable outcome.
They’ll also consider:
- who purchased the animal
- who the pet is registered to with the council
- who the pet is registered to on their microchip
- who took care of the pet, for example, making vet appointments or attending training
Will the pet always go to the legal owner?
The owner of record of a pet does have an advantage due to the fact that they bought the animal or remain the registered owner weighs in their favour. However, legal ownership does not necessarily mean that that party will be awarded ultimate ownership at the final settlement.
In the case of Grunseth & Wighton (2022) FLC ¶94-099;  FedCFamC1A 132, the wife had purchased a dog called Roxy and retained legal ownership of Roxy at the time of divorce. However, the court found that she had purchased the dog for her husband’s daughter from a previous relationship. When the couple separated the court determined that ownership of Roxy should transfer to the husband for reasons of justice and equity. Ultimately they felt that the dog really belonged to the daughter.
Though this case was appealed and did go to a higher court, ultimately, this court agreed that the daughter was the equitable owner of Roxy, and because she was not a party to the legal proceedings, the court couldn’t make a decision on Roxy as part of the property pool of the couple. Roxy remained, therefore, with the daughter (and the husband) despite the fact that the wife was the legal owner of record.
Possession can be determinative
Courts have historically hesitated to decide on the division of a pet as property, and there is not a lot of case law on which party should keep a pet following a divorce or separation. However, possession can often be determinative. In other words, if you want to keep your pet following your separation, then you should keep the pet in your care. It’s typically quite difficult for the other party to take over possession and ownership as long as the pet remains physically with you.
How Toomey Family Law can help
If you are going through a separation or divorce and pets are on your mind, get in touch. Our team understands how important pets are and is here to help you navigate the intricacies of pets and divorce and separation.