In recent years, the increasing recognition of pets as integral members of the family has led to the treatment of pets in family law proceedings gaining significant attention in Australia.
So, if you and your partner/spouse separate, who gets to keep the fur baby?
Current Legislative Framework
Firstly, it is crucial to understand that pets are treated as property in family law disputes.
At present, the Family Law Act 1975 (Cth)1 (the Act) does not have any specific provisions pertaining to pets, therefore pets are treated in a similar manner to any other type of property.
The recent case of Grunseth & Wighton (2022) FLC 94-099 confirmed that the court will not consider questions of attachment to the pet, nor will it undertake a ‘best interests’ analysis when determining ownership.
In that case, each party had sought an order for ownership of Roxy, an eight-year-old Spoodle. The wife had purchased Roxy for the husband’s daughter from a previous relationship. The wife was Roxy’s registered owner. The primary judge initially found that, given the emotional attachment of the husband and his daughter to Roxy, ‘justice and equity’ would be served by adjusting the property interests of the parties so that ownership of Roxy was transferred to the husband.
On appeal, the Court stated ‘As much as it will pain pet lovers, animals are property and are to be treated as such. Questions of attachment are not relevant and the Court is not, in effect, to undertake a parenting case in respect to them’.
To determine who retains the family pet, courts have considered:
- Who acquired and paid for the pet,
- The person listed as the registered owner of the pet with the council,
- The person who cared for the pet, and
- Who paid for the pet’s food, grooming and veterinary care.
Further, it has been held that the court has no power to make orders for two parties to share the ownership/care of a pet after separation (see Davenport & Davenport (No. 2) [2020] FCCA2766). The court therefore only has the power to make orders for one party to have ownership of the pet.
If a pet has a high monetary value, it may be included in the balance sheet. The retention of an income producing pet could also be relevant to an overall division of assets pursuant to s 75(2)/90SM(3) of the Act.
Recent Legislative Developments
In August 2024, the Australian government introduced the Family Law Amendment Bill 20242 (the Amendment Bill) into Parliament.
The purpose of the 2024 amendments is to reform the aspects of the Act that deal with property matters.
For the first time, the Amendment Bill proposes to include specific provisions regarding pets in the Act. It is important to note that the relevant amendments specifically focus on companion animals.
A companion animal is defined as ‘an animal kept by the parties to a marriage or either of them, or the parties to a de facto relationship or either of them, primarily for the purposes of companionship’.
The amendments specifically exclude assistance animals (i.e. guide dogs), animals kept for businesses (i.e. cattle dogs), animals kept for agricultural purposes or animals kept for use in laboratories or experiments.
If passed, the proposed amendments will allow the court to order that, for companion animals:
- one party to the marriage/de facto relationship, or any one party joined to the proceeding, is to have ownership of the companion animal, or
- the companion animal be sold.
In determining which of the foregoing orders (if any) are to be made in relation to the companion animal, the court is required to consider the following (if relevant):
- The circumstances in which the companion animal was acquired
- Who has ownership and possession of the companion animal
- Who has cared for and paid for the maintenance of the companion animal
- If one party has subjected or exposed the other to family violence
- If one party has threatened or subjected the companion animal to cruelty or abuse
- Any attachment by a party or a child of the marriage/de facto relationship to the companion animal
- The demonstrated ability of each party to care for and maintain the companion animal without the support or involvement from the other party, and
- Any other fact or circumstances which the justice of the case requires to be taken into account.
Key Takeaways
It remains to be seen how the family law courts will interpret the new amendments to the Act (presuming the Amendment Bill passes through Parliament).
While it is positive that the amendments now contemplate considerations of animal welfare and human attachments in determining ownership of a pet, it is clear that there will continue to be no jurisdiction for both parties to share ownership of a pet after separation.
Consider contacting an accredited family law specialist for advice if:
- You have a spouse/de facto partner and a pet and are concerned about the long-term ownership of your pet if you and your spouse/partner separate. You and your significant other could, for example, enter into a Financial Agreement which could provide for how your pet will be cared for in the event of separation and/or arrangements for the payment of your pet’s expenses, including registration, insurance, food, grooming, and vet bills.
- You are considering separation or have recently separated from your spouse/de facto partner. You may need advice on the options available to you to best secure ongoing ownership of your pet.
Navigating pet ownership after a separation can be complex and emotionally charged. Our family law team is here to help you secure the best outcome for your beloved companion. Read more about Property and Financial Settlements.
Whether you’re considering a Financial Agreement to safeguard your pet’s future or need advice on post-separation arrangements, our accredited family law specialists are ready to assist.
Grunseth & Wighton [2022] FedCFamC1A 132
Davenport & Davenport (No. 2) [2020] FCCA2766
