Pets, in most households, are considered important members of the family. Families often have the view that pets provide them with emotional support, joy and unconditional love. There is a strong emotional bond between all members of the family and the pet/s. This makes it twice as hard to part with pets after a breakdown between spouses.

In the eyes of the law, pets are considered personal property, much like a couch or a table, rather than a treasured family member as confirmed in Downey & Beale [para 14]. Thus, courts only consider custody and ownership of pets as part of the property proceedings under ss 79, 90SM and 90SF Family Law Act which split assets and liabilities. Furthermore, the Family Law Act does not provide any direct guidance regarding custody and ownership of pets after a relationship breakdown.

Nonetheless, Courts have been attuned to the reality that pets are more than mere personal property for many families. This has been reflected in a few cases such as Jarvis v Weston, Downey & Beale as well as Gaynor & Tseh, which utilize a quasi-“best interests” approach like child custody cases. However, it is key to note that this approach is dependent upon which judge you get on the day.

Considerations:

Court decisions on pet custody is quite rare and uncommon. Nonetheless, there have been some consistent key considerations the Court accounts for regarding pet custody within the property proceedings framework (Stanford v Stanford):

• Who bought the pet and for what purpose? E.g. a gift for their spouse
• Who was the main caregiver and took most of the responsibility over the pet?
• Is the pet registered and under whose name? (This is not a deciding factor)
• Which party’s residence was most suited for the care of the pet?
• Who paid for care and maintenance of the pet?
• What options are the best arrangement for the pet?
• Any current care arrangements between the parties

What are your options?

There are a myriad of options outside of court you can undertake, but it is imperative that you seek legal advice to find which option will best assist you in getting your outcomes. Some options available are:

• Negotiating with your former partner/spouse

You may be able to come to an arrangement that mutually benefits you both and it good for your pet. This will minimise any costs incurred as well as any negative feelings/emotions at court.

• Arbitration/Mediation

If you and your former spouse/partner are unable to come to an agreement together, it may be helpful to have a third party assisting you to come to a mutually beneficial agreement that also meets the needs of your pets.

• Seek Consent Orders or a BFA which includes provisions for your pet

If you and your former spouse have come to an agreement regarding custody arrangements for your pet, you can go to court and seek a consent order or have a solicitor draft a BFA for you which reflect your pet custody arrangement with your spouse. Consent orders and a BFA can better assist you to enforce any custody arrangement if any party is in breach of the custody arrangements.

• Application for property Orders

An application for property orders are costly and require a lot of time. There is also a lot of court discretion in relation to considerations about pet custody as mentioned above. It is best to consult a legal practitioner to determine whether this option is the best one for you.

Undergoing a relationship breakdown as well as considering the potential of losing a beloved pet can be an emotionally exhausting and traumatic experience for any person. If you are considering negotiating with your former partner about pet custody arrangements or applying for property orders in relation to your pet, one of our experienced family law solicitors on (02) 9920 1787 to discuss how we may assist you to achieve a favourable outcome. Our principal is named as leading Family and Matrimonial Lawyer of the Year by Acquisition International in their 2019 leading Adviser Awards. Pannu Lawyers are conveniently located in Blacktown and practice extensively in Family Law, Criminal Law, Commercial Law and Conveyancing.

Note: The above information is intended as general information and is not intended to be relied on as legal advice