With the silly season almost upon us, thousands of Australians will soon find themselves contemplating getting their children or partner (or themselves) a pet as a Christmas present. Conversely, many of us have already taken the plunge during lockdown and now find ourselves cohabiting with a recently acquired Pandemic Pup, COVID Cat, Lockdown Lizard, Work‑from‑home Hamster or Biosecurity Bird.
Unfortunately, it’s also undeniable (and understandable) that the stress of the pandemic has caused many people’s relationships to go to the dogs. This then, begs the question; what happens to pets when a relationship breaks down? Who wins in a tug-of-war over the puppy? Can you have a parenting plan for a dog?
Poodles as Property
The Family Law Act 1975 (Cth) does not have specific provisions for pets. Despite the fact that a family pet may be loved just as much (or, let’s be honest, occasionally more) than a couple’s own children, pets are still legally seen as chattels, or items of personal property (see the recent case of Edwards v Gilliespie [2020], concerning Oscar the Cavoodle). As such, the Federal Circuit and Family Court of Australia has the power to make decisions about who will keep a family pet in the same way they have the power to decide who will retain a television or couch.
While most cases that have gone before the Court involve dogs, there is no reason to believe cats, lizards, snakes, fish, guinea pigs or birds would be treated any differently.
Separating and Schnauzers
The most common way in which assets, big or small, are divided between couples after separation is by agreement, either by negotiation, mediation, or with the help of lawyers. Often, parties may draw up a list of things they want to keep and then go through selecting items back and forth until the division is roughly equal. Assuming everybody’s on board with it, there is no reason a pet cannot be included in such a list.
Parties can, potentially, agree informally to share a pet between them, but this can be a difficult arrangement, as it requires separated couples to continue regularly seeing each other to change “custody” of the animal in question. Couples looking to put an arrangement like this in place are advised to set out very specifically beforehand when each party will have the pet, where changeovers will happen, any health or dietary decisions, and how the pet’s costs will be shared.
Dividing Dalmatians
If parties cannot reach agreement, they may look to the Courts to make a decision. No special considerations apply – a Court will not consider “the best interests of the dog” in the same way that a parenting application would consider “the best interests of the child.” Going to Court is an expensive, time-consuming process, and unless your dog is Airbud or an Instagram star, the financial cost of litigation will very quickly eclipse the momentary value of even the most expensive puppy many times over.
As with all disputed assets, a Court deciding who keeps a pet will look at who that pet’s legal owner is and the contributions each party has made to it. This will include:
- Who registered the pet;
- Who bought and paid for the pet;
- Whether the pet was a gift;
- Who the pet spent most of their time with; and
- Who looked after the pet, financially and otherwise.
None of these factors are necessarily determinative and the Court will consider the whole of the circumstances in making a decision. Obviously, if the pet is a service animal or guide dog for one party, that will be an important factor to take into account.
Per the recent case of Davenport & Davenport (No 2) [2020], a Court does not have the power to order a shared-care arrangement or other “parenting-style” orders for a fur-baby as they do for a flesh-puppy. However the Court may, in cases where there are also parenting proceedings on foot, consider the emotional attachment between a child and a pet (see Jarvis & Weston [2007]) and find that it is in a child’s best interests that that pet live with a particular parent.
Getting help with Greyhounds
Breaking up is never fun at the best of times. Add in having to divide assets and the emotional strain of losing your faithful companion, and it’s easy to feel like you’re chasing your tail. If you find yourself being hounded by your former partner over pet ownership, or feel like you’re barking up the wrong tree about property matters generally, contact the dogged lawyers at Hunt & Hunt on (02) 9391 3000 to speak to a legal team that might shake, but won’t roll over.
Article prepared by: Ben Keyworth, Associate
