How are pets treated in family law proceedings in Australia?

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Mellor Olsson Lawyers

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Mellor Olsson is a leading South Australian law firm, offering specialized legal advice to families and businesses across the State. With a focus on client needs, our experienced lawyers strive to enhance the lives and businesses of our valued clients. We are committed to South Australia, providing high-quality legal services in Adelaide and regional areas, building lasting relationships through personalized service.
Pets are regarded as property in family law proceedings. The court has a discretion when determining who will retain the pet.
Australia Family and Matrimonial
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For many families, pets are more than just animals or mere possessions; they are cherished and valued members of the family deserving of care and consideration.

Despite these values held by many families, in Australia pets are regarded as property in family law proceedings, akin to other personal items such as a motor vehicle, house or piece of furniture.

This means that when parties are unable to reach an agreement, pets will be dealt with as part of the property settlement process. If a pet has significant monetary worth, such as being a pure breed or if it is a racing or show animal, the Court will use the value of the pet when determining the property pool available for division and the property to be retained by each party.

Disputes relating to pets in Australian family law proceedings are a developing area. As such, there is little case law on the issue. The Court ultimately has a discretion when determining who will retain the pet, and may consider the following factors:

  • Who purchased the pet and whose name it is registered in.
  • Who paid for the expenses associated with the pet, such as vet costs, food, pet insurance, grooming and toys.
  • Who was primarily responsible for caring for the pet both during the relationship and post separation, including who usually fed, exercised, played with, and cleaned up after the pet.
  • Whether one party has a specific need for the pet, for example, whether it is a therapy pet or is essential for a party's emotional and psychological wellbeing.
  • Whether any children of the relationship have a significant attachment to the pet.
  • The financial means of each party and their capacity to maintain the ongoing costs of the pet.
  • The lifestyle of each party and their ability to care and support for the pet, including their work and social commitments.
  • Whether each party has appropriate and suitable pet friendly accommodation, particularly when a party no longer resides in the former family home.

While the Court may consider the factors mentioned above, it will ultimately decide how to divide the overall asset pool (including determining who will take ownership of the pet), using the standard four-step process as set out in the Family Law Act 1975. These steps are as follows:

  1. Establishing the property pool and ownership of assets.
  2. Assessing the contributions of each of the parties to that property pool to arrive at a percentage.
  3. Making adjustments to the percentage on the basis of future needs considerations.
  4. Applying the percentage to the property pool and assessing whether the adjustment is just and equitable in the circumstances of the individual case.

Other jurisdictions

Other jurisdictions are evolving in the way that pets are treated in family law proceedings.

For example, in Spain pets are no longer considered property or objects, but rather they are treated as family members under the law.

In Canada, there have also been recent amendments made to the law which means that pets will no longer be considered property. Instead, the Court can make orders regarding the care and ownership of pets based on their welfare. In doing so, the Court can look at factors such as whether there are any risks of family violence or threats of cruelty to a pet, and each person's ability and willingness to care for the pet.

Similarly, in Alaska the Court prioritises the wellbeing of a pet and can award "custody" based on what is in their best interests.

Reaching mutual agreement

If possible, parties are encouraged to try reach a mutual agreement between themselves with respect to their pets. This allows you to consider a number of additional factors to determine the best outcome for you, your family and your pet.

Based on your individual circumstances, there are various alternatives that you may consider. For instance, you may agree to a shared care arrangement or visitation plan for your pet, much like you would with children. If you have children, you may explore the possibility of the pet staying with them in accordance with the agreed parenting arrangements between the households. Alternatively, you may decide that that optimal choice for the pet's well-being is for it to reside permanently with one of you.

Irrespective of the decision made, it is crucial to document any agreement in writing and to have it formalised through a lawyer.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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