We often turn to our pets as a source of comfort and companionship, but what happens with them following a separation?
With both divorce and separation now being acknowledged as one of the most stressful life events an individual can have, it is no surprise that disputes often arise about who gets to keep the family pet.
There is no specific legislative framework for what is to occur for pets in the Family Law Act 1975 (for married couples in Western Australia) or the Family Court Act 1997 (WA) (for de-facto couples in Western Australia). There is no definition about what constitutes a pet, and the treatment of pets amidst a relationship breakdown.
The Family Court treats pets as property, irrespective of whether they are treated as part of the family and the sentimental attachment associated with them. The Family Court has the power to alter interests in property of the parties, and can therefore make orders in relation to pets and who should retain same.
Of course, pets are often treated as an integral part of one’s family, and are considered both priceless and irreplaceable to their owners. While this may be the case from an emotional perspective, the legal position is that family pets are an ‘’asset’’ and the Court has been confronted with applications by parties in dispute about who will retain the ownership of the pet in a property settlement.
In the 2017 case of Downey v Beale, his Honour Justice Harman stated “one would hope, in this neoliberal world, that we have not yet come to the point where even love and affection are commoditised.” In that case, the parties had reached consent about the division of their assets, however, the Husband sought that the family dog be excluded from the assets to be transferred to the Wife on the basis that he was the legal owner of the dog, having registered the dog in his name.
In determining who was to retain the family dog in separation, his Honour considered the evidence presented by each party as to:-
- The circumstances about the original purchase of the dog.
- The registration details.
- Preparedness and capacity to meet the ongoing costs of the dog including vet bills, food bills and other costs ordinarily associated with pets.
- The responsibility for the physical care of the dog including who had responsibility for vet appointments and managing the accommodation arrangements for the dog following separation.
In considering the evidence on the above points, his Honour determined that although the Husband had initially purchased the dog, and the dog was legally registered to the Husband, the Wife was responsible for the direct care of the dog, as well as the direct financial care. She was, therefore, awarded the ownership of him in the separation.
There is no law in Australia which requires parties to “co-parent” or share the ownership of animal. While some pet-parents may choose for the family pet to be shared between homes, sometimes accompanying children as they spend time with each parent, there is certainly no requirement for the Family Court to make that order and these disputes are determined on their own facts. There is, as is the case with all family law matters, no one size fits all approach.
For those in dispute with their former partner about pet custody, we recommend that you seek legal advice specific to your situation.
Please contact Kerr Fels on (08) 6381 9080 to make an appointment.
The information in this article is of a general nature and should not be relied upon for your family law matter or pet custody.
About KERR FELS – Divorce and Family Lawyers
Kerr Fels is a boutique law firm practising exclusively in family and divorce law. We offer experience in settling complex financial matters arising from separation involving business entities, trusts and large asset pools, in addition to negotiating simple divorces. We are conveniently located in the Perth CBD.
Our philosophy is to provide client-focused cost effective, efficient and pragmatic legal advice. Don’t hesitate to contact us if you need advice about separation or divorce.
We are open Monday to Friday from 8.30am until 5.00pm. We offer the option of video conference meetings for those who are unable to attend in-person appointments.
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