Divorce – Who Keeps the Pets?

Most pet owners freely consider their furry, feathery or even scaly friends to be ‘part of the family’ to a point even where many instinctively refer to their pets as children.

What happens though to the pet in a situation of divorce or relationship breakdown between the pet’s ‘parents’?

Under the Australian Family Law Act the ongoing care of the actual human children to a relationship is carefully managed by an extensive array of provisions designed to ensure that the best interests of those children are met.

Australian Law, however, considers pets to be just another form of property and consequently the working out of where little ‘Fluffy’ is going to live is done in the same way decisions are made about the family car or the living room couch. On those few occasions where these cases have ended up in Court, the decisions have been worked out along the lines of:
– Who is the registered owner;
– Who paid for the initial and ongoing expenses;
– Who was the main caregiver during and after the relationship;
– Whether the parties will have appropriate accommodation for the pet; and
– If there are parenting arrangements for children, whether the children have a special attachment to the pet.

Unofficially, a Judge would be expected to consider the animal’s welfare but officially, under the current laws, the closet thing we have are provisions which allow a Judge to make an Order that protects or preserves property from waste, destruction or damage. In the extreme scenarios where the pet is subjected to violence or some other cruelty, State-based criminal and domestic violence laws can be invoked to keep the pet safe. However, these cases are run through the State Court system and cannot be connected up with any Family Law case.

At present, we do have some change in these laws on the horizon. In the USA at least two States have either introduced or are in the process of introducing laws that will give Family Law Judges the power to make Orders about the ongoing possession and care of family pets along welfare lines. In Australia, it is presently considered that a couple would be able to make a binding (‘pre-nup’) style agreement that stipulated who would be keeping the family pet in the event of a relationship breakdown. Since pets are ‘property’, there should be no reason why a Family Court Judge would not enforce the agreement if the couple were ever to separate at some point in the future.

Joshua Noble is an Associate at Zande Law Solicitors, Suite 7, Norwinn Centre, 15 Discovery Drive, North Lakes. To contact Josh for advice, please phone (07) 3385 0999.

The information in this article is merely a guide and not a full explanation of the law. This firm cannot take responsibility for any action readers take based on this information. When making decisions that could affect your legal rights, please contact us for professional advice.