For most families, their pets, being a dog, cat, fish, or bird are intricate members of the family. So what happens to Spot or Crookshanks when parties separate?
The Australia Veterinary Association estimates 63% of Australians have a pet. Dogs are the most common pet (39%) and there are estimated to be 4.2 million pet dogs in Australia alone. So what happens when a couple separate and a decision needs to be made in relation to their beloved pet?
There are a number of reasons that people may contest who keeps the family pet including:
- Parents may argue over who the pet will live with in relation to the parenting matters (i.e. trying to keep the family pet primarily with the children).
- Parties (in circumstances where they have no children) can have strong emotional attachments to their pets and treat them as if they were a child.
- Occasionally, one party will use the pet as a bargaining tool to try and achieve a greater division of the matrimonial assets in their favour. There are many cases where one party has offered the other significantly more, or being prepared to accept less, provided they keep the pets.
Whatever the reason, disputes over family pets appear to be coming more and more common and we are answering client’s questions about what happens with pets when parties separate.
The Courts have very limited capacity to deal with pets. Pets are generally treated as personal property (unfortunately in a similar way to CD’s or clothes). Pets do not have the same rights in the Court system that a child has, that is, the Court is not concerned with identifying the best interest of the pet or determining Orders in relation to who the pet should live with and who the pets should spend time with. In a small amount of cases the Court has Ordered that a family pet travel with a child between houses. This type of Order was only made to help the child feel comfortable moving between households, rather than a legal recognition of a shared care arrangement for the pet.
For example, Orders were made in a case for a pet parrot, to accompany his owner, a young boy with down syndrome between his parent’s homes. The Court’s aim in making an Order in relation to the parrot was to alleviate the child’s anxieties and to facilitate an arrangement that was in the best interest of the child.
Given the Court’s inability to deal with pets and a strong reluctance to have any matter address the issue of pets, many people negotiate their own “care arrangements” for pets by way of informal agreements or signing financial agreements to avoid battles over their furry friends.
If there is a dispute over a pet and such dispute is brought before the Court (please note that this is not recommended) the following considerations would be considered relevant.
- Considering children first. If a pet is an important part of a child’s life and therefore should be included in any Orders made.
- Who is responsible for the day-to-day care of the pet including pet visits.
- Who purchased the pet.
- Who is the registered owner and who holds the registration papers.
Private agreements are an option for those wishing to formalise arrangements for the care of pets, however this requires consent between both parties. What we see in practice is parties working out an arrangement between them privately in relation to the pet and the time the pet will have with each parent and the respective children moving forward.
If you have any questions on what may happen to your pet in a separation or divorce, please contact our Family Law team on (02) 9523 5535.