Although there is a clear framework under Australian law for deciding what arrangements are in the best interests of children after a separation, this does not apply to fur babies. Animals come within the definition of property and are essentially dealt with in the same way as items like cars and furniture, despite the emotional attachments that exist between people and their pets. This approach is somewhat inconsistent with animal welfare laws and regulations about the ownership of these sentient beings, so there is an argument that the law could be improved in this field.
Powers of the Court
The legislation applicable in a dispute over the ownership or possession of a pet in the context of a dispute following a separation is the Family Law Act 1975 (Cth) for married couples or the Family Court Act 1997 (WA) for de facto couples.
The Family Court of Western Australia ("the Court") has power under the provisions of both Acts to make orders altering the property interests of the parties, declarations as to who owns property, injunctions to protect property and orders requiring the sale of property.
The Acts define property as: "property to which those parties are, or that party is, as the case may be, entitled, whether in possession or reversion".
As stated in Gaynor & Tseh  FamCA 164: "The Family Law Act 1975 (Cth) makes no reference to pets ... Hard as that may be for the applicant, and perhaps other dog lovers to accept, the law here concerns the alteration of interests in property".
When determining a property settlement, the Court has a duty to make such orders as will finally determine the financial relationships between the parties and avoid further proceedings. In disputes about a pet, the Court is therefore unlikely to make a final order for shared ownership or possession to continue, or for both parties to maintain an ongoing relationship with the pet like it usually would for a child.
Value of pets
In deciding a property settlement, one of the first steps is to determine the current market value of the property available for division. Although pets are often invaluable to their owners, companion animals will usually only have a nominal market value. This may be different for pedigree animals or livestock that can generate an income, but expert evidence may then be required to prove their value.
In Downey & Beale  FCCA 316, it was said: "Neither party seeks to apportion a value to [the dog] and appropriately so. They do not argue that his worth is monetary. His worth is their love and affection for the creature as they express it".
In Benford & Benford  FMCAfam 8, the court had to decide a ballpark value for nine pedigree dogs without the benefit of any expert evidence. The court noted that: "Fair market value is usually defined as the highest price attainable in an open and unrestricted market between informed and prudent parties acting at arm's length and under no compulsion to buy or sell". The Court observed that it could make an order for the dogs to be sold to confirm their value, but decided it was preferable for the wife to retain the dogs at her estimated value of $3,000 each.
In determining which party should be able to keep a pet, the following factors have been considered by Australian courts, but this is a discretionary decision to be made in the circumstances of each case:
- Who paid to purchase the animal. However, in Downey & Beale, the court stated that "payment of a fee does not, of itself, determine ownership or determine the Order, if any, which might be made by this Court in adjustment of interests in property". In that case, the husband purchased the dog, but the wife said this was as a birthday present to her and she was ultimately allowed to retain the dog.
- If the animal is registered and in whose name. However, in Downey & Beale, the dog was unregistered until the wife registered the dog in her name after separation, which was described as "self-serving".
- Who has had possession of the animal. In Delong & Rouse  FCCA 1498, it was found preferable for the husband to keep the dog because he had possessed and cared for the dog in the two years since separation.
- Who made greater financial and non-financial contributions to maintaining the animal, which could include:
- Who paid for food, veterinary bills, insurance, grooming and accessories; and
- Who fed, exercised and cleaned up after the animal, and took the animal to classes or appointments.
In Downey & Beale, the wife was able to produce a bundle of bank statements and documents showing that she had paid such expenses and listing her as the "owner" of the dog.
- Whether the animal should remain living with any children of the parties. In an unreported 2017 case, it was concluded that "as the children are likely to be in the care of the Applicant for at least the short to medium term, they should have the enjoyment of looking after the dog". It was similarly decided in Jarvis & Weston  FamCA 1339 and Langley & Bramble  FamCA 437 that the family dog should stay with the children.
- Whether the animal is a service animal that one party will need to rely on in the future, which was referred to in passing in Downey & Beale.
- Whether the parties have appropriate accommodation. In Poulos & Poulos  FamCA 800, the court found that it was reasonable for the wife to seek additional spousal maintenance to allow her to obtain pet-friendly accommodation and take the dog with her. The court said: "it is entirely reasonable that the wife should want to take her dog with her to her new accommodation for companionship. The wife is not in the workforce, she is involved in the stress of a marriage breakdown which has given rise to litigation and she will not have the companionship of the parties' daughter who will continue to live in the former matrimonial home. In circumstances where the wife is agreeing to the husband continuing to reside in the former matrimonial home, it would be unreasonable to expect her to also break her ten year bond with her pet dog."
Keeping it out of Court
Although the Court has power to make decisions about pets, it would be more efficient in time and cost to try and resolve such disputes through negotiation or mediation.
In Gaynor & Tseh  FamCA 164 and Farrow & Farrow (No 2)  FamCA 794, the courts declined to make any order on an interim basis changing the ownership or possession of dogs, such that the dogs remained where they were until the parties could reach an agreement or there was a trial for a final property settlement.
In Delong & Rouse, it was commented that: "The Court is unhappy to be in a situation of having to make a decision about other people's pets. It is somewhat alarming that the parties could not resolve this matter and have spent well in excess of the cost of a new dog on preparing affidavits and arguing about the matter."
The other benefit of a negotiated agreement is that there is more scope for creative solutions, such as sharing possession of the pet on a timetable.
If an agreement is reached about the ownership or possession of pet, it is still possible to formalise this through a Form 11 Application for Consent Orders or a Binding Financial Agreement, so the agreement is enforceable.
However, it should be kept in mind that time limits apply for being able to commence property settlement proceedings, including in relation to a pet. The time limit is two years from the date of separation for de facto couples and one year from the date of a divorce order for married couples.
The law in some overseas jurisdictions has been changed to better reflect that man's best friends should not just be treated as part of the furniture. For example, laws were introduced in Alaska, Illinois and California in the last few years which require courts to consider an animal's wellbeing in a divorce. It remains to be seen whether the law will change in Australia, but it is up to the courts to work with the framework we have in the meantime.
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.