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Pet Custody: Who Gets the Pets After a Separation or Divorce?

Dogs, cats, and other domestic pets are considered to be beloved family members by many Australians. As such, strong emotional attachments exist between the owner and the pet. These attachments often become the source of significant conflict regarding which ‘pet parent’ will have custody if the relationship dissolves. Deciding which party gets custody of pets at the end of a relationship can be a painful struggle.

 

Your Relationship

The first matter to consider when working out possession of domestic pets is if the relationship is a marriage, a de facto relationship, or if the couple is merely dating. The formal division of property must occur at the end of a marriage or a de facto relationship. For a couple who are dating, legal measures may not be required.

 

How Does the Court Determine/How Does the Law Treat Pets in the Context of Divorce Settlements?

Unlike parenting matters, the law in Australia holds that pets are personal property and does not explicitly address custody of domestic pets when a relationship ends. While the Family Law Act 1975 does not expressly mention pets, it offers a great deal of counsel regarding the division of personal property. The tricky part of using this guidance is that pets are not divisible in the same way a judge may divide other property. Other elements must be addressed to determine which partner should receive the pet as a part of the property settlement.

 

What Needs to be Considered When Determining Pet Custody?

Because the courts see pets in the same category as clothing or a collection of music, there is no such thing as a formal court-ordered residence for a domestic pet. Several factors play vital roles when looking at which partner should get the pets in a division of property. These include:

  • Who purchased the pet or received it as a gift?
  • Who registered the pet, and in whose name?
  • If the pet is pedigreed with papers from a breeder, whose name is listed as the owner?
  • Who pays for the pet insurance policy?
  • Who engages in the daily care of the pet (e.g. Walking, feeding, cleaning up after, taking to the vet and groomer)
  • Who pays for the pet’s food, vet visits, supplies, and grooming?
  • The general welfare of the pet
  • Is the pet subject to neglect or mistreatment by either partner?
  • Who offers the most suitable living arrangements for the pet?
  • Which partner has the financial means as well as the appropriate amount of time to provide the pet with proper care?
  • Are children involved, and are they emotionally close to the pet? In some situations, the pet will live where the children are staying.

 

What Are the Options Available to Resolve and Formalise Custody Over Your Pet?

Preemptively, pets can be included as a part of a pre-nuptial agreement (also called a Binding Financial Agreement or BFA)

A best-case scenario would be both parties reaching an agreement regarding the pet and its care.

 

What Happens if We Cannot Agree?

If you and your former partner are not able to reach an agreement on your own, you can:

Make the Pet a Part of Your Formal Mediation

By doing this, you can decide who the pet will live with, if and how much time the pet will spend with the other party, how the pet’s expenses are paid for, and other decisions about the pet. You should be aware that once you reach an agreement in principle unless the agreement forms a binding contract/agreement or court order, then it is not likely to be legally enforceable.

  • File an Application for Consent Orders or prepare a binding financial agreement determining who keeps your pet. In this scenario, your pet is the property that must go to you or your former partner. Factors that the court has considered when making orders in relation to pets are as follows:
    • Who did the pet live with before, during, and following separation
    • Who the animal spent most of its time with or bonded with
    • Who has paid the costs associated with owning the pet
  • Make an Application for Property Orders to Include Your Pet. If all avenues of negotiation, mediation, and attempting to agree upon consent orders fail, you can make an Application for Property Orders. Typically, the court will make orders for the party with the greatest claim to pet ownership.

Even though Australian law considers domestic pets as property, you can still work with your partner to create a fair settlement regarding your pets, if one partner should receive the pet as a part of the property settlement, or how to divide the time spent with the pet, who pays for care, and the like. If you are struggling to reach an amicable agreement, remember you do not have to work through your situation alone. Contact My Legal Crunch, and our team of legal experts can help you through this challenging time in your life. We understand that pets are family, and we will work with you to get the best outcome for your case.

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