Pets in Family Law separation: Who gets to keep the family dog in a divorce?

A relationship breakdown can be an emotionally challenging time, especially when it comes to deciding who gets to keep the family pet. For many couples, pets are considered part of the family, making pet “custody” disputes a significant issue in family law proceedings. With recent amendments to the Family Law Act, the Court can now take a more nuanced approach to determining pet ownership following separation.

If both parties want to keep the pet and cannot reach an agreement, the Family Court may make the final decision. Either party can make an application to the Federal Circuit and Family Court of Australia (FCFCOA) in relation to the pet. In considering what orders are appropriate in respect of the companion animal, the Court must take into account the following:

1. The circumstances of how the companion animal was acquired.  For example, which party purchased the pet or which party went to the breeder or pound to collect the pet.
2.  Who has ownership or possession of the companion animal. This can include consideration of which party is listed on the microchip or which party is caring for the pet. 
3.  The extent to which each party cared for and paid for the maintenance of the companion animal. Several factors are relevant to this point, including, which party fed, walked and took the pet to the vet, which party paid for vet bills or pet insurance, who purchased food for the pet etc. 
4.  Any family violence to which one party has subjected or exposed the other party. This consideration is not only be considered in relation to the determination about companion animals but also the parties’ overall property settlement. 
5.  Any history of actual or threatened cruelty or abuse by a party towards the companion animal.
6.  The demonstrated ability of each party to care for and maintain the companion animal in the future.
7.  Any other fact or circumstance for example, if children are involved, the Court may prefer that the pet stays with them to provide continuity and stability.

What to do before applying to Court for an Order relating to your pet?

There are several things you must consider before making an application to the Court, including:

1. Each party must demonstrate that they have attempted to resolve the matter outside of Court before any application is made, unless an application is urgent.
2. There is a time limitation period of 2 years from the date of separation for de facto couples and 12 months from the date of Divorce for marred couple, in which an application must be made. 
3. There are several factors to consider in relation to companion animals, though be mindful that as pets are “property”, any discussion around ownership will usually follow a wider discourse about an overall property settlement.

How to strengthen your claim to keep your pet

If you are concerned about losing your pet in a family law separation, consider gathering evidence to prove you are the primary caregiver. This could include:

• Veterinary records in your name
• Pet insurance policies listing you as the owner
• Receipts for food, grooming, and medical expenses
• Witness statements from neighbours or friends who can confirm your role in caring for the pet

Final Thoughts

If you’re facing a divorce and are worried about losing your pet, seek legal advice to understand your rights and options. For professional assistance with pet “custody” disputes, family law agreements, and divorce settlements, contact Hanna Lawyers to speak to our family law legal experts today.

How the law views pets in divorce cases

The recent amendments to the Family Law Act confirm that companion animals are property, and the Court can make the following Orders in respect of companion animals:

1. That one party is to have ownership of the companion animal, or
2.  That the companion animal is to be transferred to another person who has consented to the transfer, or
3.  That the companion animal be sold.

While Australian family law continues to consider pets as property, there is also increasing recognition of the emotional bond between pets and their owners and, as such, courts are now considering additional factors when resolving pet custody disputes. You can find some further information about how the Court deals with family law cases involving pets on their website.

Can you share "custody" of a pet?

Under the new amendments to the Family Law Act, parties cannot share “custody” of a pet. If this arrangement is one that you wish to consider, any agreement later made to this effect will be informal and not-binding. 

What happens if you cannot agree?

Disclaimer: This article is for general informational purposes only and should not be considered legal advice. If you’re dealing with a legal issue, it’s recommended that you seek advice from a qualified lawyer to understand your specific circumstances.