Pets are now elevated to a specific category of property in family law property proceedings following amendments to the Family Law Act 1975 (Cth) which took effect on 11 June 2025. Will these reforms result in a more just and equitable division of property between separating couples or exacerbate conflict and extend proceedings?
Let's first look at how pets were previously dealt with under the Act.
How were pets dealt with under the Act prior to the amendments?
Previously, the Act made no specific reference to how our furry, fluffy or feathered loved ones were to be dealt with following the breakdown of a relationship. Pets therefore were traditionally treated like any other asset or item of property. As a practical matter, this meant the Court could only decide ownership in a narrow sense (who purchased or registered the pet?) and could only 'alter' ownership with reference to the pet's market value.
The following cases demonstrate the contentious, complicated and often contradictory nature of previously determining pet ownership and why amendments to the Act were warranted.
Previous cases
In Downey & Beale [2017] FCCA 316, both the husband and wife sought to retain the family dog. While the husband had purchased and registered the pet, the judge determined that the wife was the owner as she had contributed to the dog's care directly and was responsible for the maintenance of the dog.
In his judgement, Judge Harman recognized that the dog's worth was in the parties' 'love and affection' for it, stating 'dogs are not our whole life, but they make our lives whole'.
Likewise, the primary judge in Grunseth & Wighton [2021] ordered that the family pet was to remain in the husband's possession, citing as a determining factor the emotional attachment the husband and daughter felt towards the dog.
However, this decision was overturned on appeal in Grunseth & Wighton [2022], with the Full Court establishing once and for all that pets should be valued in the usual way (even suggesting a 'blind bid' to establish value) and that emotional attachment and welfare were irrelevant when determining pet ownership.
While well intentioned, this approach clearly left an open door for one party to exploit an emotional attachment, resulting in the other party accepting a value for the pet that was inconsistent with its market value and thus skewing a final division of the parties' property pool that iwas not accurate to the monetary value of assets received.
The above shows how decision makers were limited by the Act in dealing with pets following separation.
That has now changed.
Companion animals as a distinct category of property
With the passing of the Family Law Amendment Bill 2024, pets are now considered a distinct type of property. Specifically, under section 4 of the Act, companion animals are defined as any animal kept primarily for companionship by one or both parties to a marriage (or de facto relationship) and excludes animals kept as part of a business, assistance animals, or animals kept for agricultural or test purposes. For the purpose of this article, 'pet' and 'companion animal' are used interchangeably.
How will companion animals be dealt with under the new amendments?
Sections 79 and 90SM now includes subsection (6), which grants the Court specific authority to make an order (including a consent order or interim order) that:
- only one party is to have ownership of the companion animal
- the companion animal be transferred to a third consenting party
- the companion animal be sold.
In the new subsection (7), the Court is then given guidance as to what factors should be considered if an order is made regarding companion animals. These include:
- how the companion animal was acquired
- who currently has ownership or possession of the companion animal
- the extent to which each party cared for, and paid for the maintenance of, the companion animal
- the demonstrated ability of each party to care for and maintain the companion animal in the future, without support or involvement from the other party
- attachment by a party or child to the relationship to the companion animal
- history of actual or threatened cruelty or abuse by a party towards the companion animal
- any family violence to which one party has been subjected or exposed to by the other party
- any other fact or circumstance that, in the opinion of the court, the justice of the case requires to be taken into account.
Why and how does family violence apply?
Research indicates as many as 7 in 10 cases of domestic and family violence involve animal abuse. Further, it is often the case that pets are used as a tool of coercion or control against victim-survivors of domestic violence.
A party may be especially susceptible to making unfair concessions if they know or suspect that the pet may be abused or neglected if retained by the other party.
The new amendments seek to address these potential power imbalances by giving the Court the jurisdiction and guidance in considering pet ownership holistically.
Litigating Lassie – what possibly could go wrong?
While these amendments relating to pet ownership may be welcome guidance to decision makers, they are not without problematic consequences.
Intensified negotiations
Under the new amendments, specific factors can be referred by parties when establishing their 'claim' to a pet, including their demonstrated ability to care for the pet and if there has been actual or threatened cruelty towards the pet by a party. Attachment between a child and the pet can also now be a consideration. Unfortunately, an otherwise largely agreed upon property settlement could be derailed by these additional opportunities for conflict and competing perspectives.
Extended length and cost of litigating property matters
The amendments may embolden parties to include pet ownership as a disputed issue in property litigation when they feel the weight of factors considered are in their favour. However, parties should be aware of the additional costs, time, and emotional strain likely to be associated with litigating pet ownership.
For instance, to establish a party's claim, affidavits will likely increase in length and cross-examination made even more intense and personal. Further, if an 'objective' perspective is required, the parties may need to engage an 'expert' to prepare a report.
Only one 'winner'
Not unlike children, pets hold a very special place in our hearts, and parties to a dispute may legitimately feel it is in the pet's best interest to remain in their care. However, unlike children, joint decision making (or joint custody) of a pet is not an option under the new amendments.
In this way, litigating pet ownership becomes a zero-sum exercise where only one party walks away the 'winner', but, as the factors above would indicate, at great expense.
Key takeaways
These amendments seek to address potential shortcomings of the current Act by recognising the unique status pets occupy in modern society.
This shift highlights the evolving intersection of legal frameworks and the emotional significance of companion animals.
However, to treat animals separately from other items of property has the potential to create further complexities and expense when resolving a property matter.
To secure the best outcome for both you and your pet, contact our team of family lawyers to better understand your rights and options under the new amendments to the Act.
By strategising from the outset, you can improve your chance of a 'paw-sitively' favorable outcome when resolving your property matter.
Cooper Grace Ward is a leading Australian law firm based in Brisbane.
This publication is for information only and is not legal advice. You should obtain advice that is specific to your circumstances and not rely on this publication as legal advice. If there are any issues you would like us to advise you on arising from this publication, please contact Cooper Grace Ward Lawyers.
