Tag Archive for: pets

What Options Do I Have To Determine My Pets Future Post Separation? – Part 2

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We recently posted a blog titled ‘Who Gets the Dog?’. We have received many questions about pets and how they can be dealt with. As such, we have created this blog to consider what options you have to determine your pet’s future post separation.

  1. Binding Financial Agreement

Binding Financial Agreements (“BFA”) can be entered into at any stage in a relationship – before cohabitation, during cohabitation, or post separation. A entered into prior to or during cohabitation will have the effect of pre-determining what will happen to each person’s property in the event that you separate in the future. This gives you certainty about what will happen to your assets, and you can include your pet in such agreement.

  1. Negotiate

Negotiation between the Parties directly or between their respective legal representatives is usually the first step to settle a property matter. This could save a lengthy legal battle and costs. Further, you have raised your pet, you know what is in its best interests. One option may be that the pet moves between each parent’s house with the children.

  1. Mediate

In the event that negotiation does not work, the next step is generally to attend a mediation session with an independent third party who will assist with settlement discussions.

  1. Make an Application to the Court including Orders for your Pet

In the event that your matter proceeds to Court, the Court will consider a range of factors including:

  • who purchased the pet and what the purpose of such purchase was;
  • who is the legal owner of the pet, that is, whose name is the pet registered to;
  • who cared for the pet;
  • who spent more time with the pet; and
  • who took on more of the responsibilities such as feeding, walking and training the pet.

These considerations, however, are based on who should receive ownership of the ‘property’ rather than what is in the best interests of the pet.

It is important to keep in mind that the Court has wide discretion in the Orders that it makes. The Court could Order that one party keeps the pet, that the pet moves with the Children, or that the pet be sold and the proceeds divided.

Further, the Court cannot make an Order for shared time with a pet. In Davenport & Davenport (No 2) [2020] FCCA 2766, the Court decided it could not make a shared custody order which was sought by the Husband, as the FLA provides no statutory basis for the “shared custody” of property following separation (at [38]).

Link: http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FCCA/2020/2766.html

How can Southern Waters Legal Help?

Southern Waters Legal can help in the event you require assistance with your pet custody matter or your family law matter generally. Our team of solicitors can assist in negotiation, mediation, and proceeding to Court if required. We understand that pets are more than simply “property”, they are your family.

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Who Gets The Dog? – Part 1

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Who Gets the Dog?

Have you ever wondered what would happen to your pet in the event that you and your partner separate? Have you gone as far as actually discussing who your pets would live with, and would it be a shared-time arrangement?

Approximately three quarters of Australian households own pets, with over $33 billion spent on pet products and services in 2022 and an average of $3,218 spent per dog per year. It is therefore not surprising that “what happens to my dog?” is one of the most common questions we get asked.

How are Pets Treated in Family Law Disputes?

When determining parenting arrangements for children, the main consideration of the Court is “what is in their best interests?”. Unfortunately, the same approach does not apply to your fur babies.

The Family Law Act 1975 (Cth) (“FLA”) provides no specific guidance to the treatment of pets in family law proceedings. Therefore, pets are treated as property and form the overall asset pool that can be divided, just like bank accounts, houses, and cars. This usually comes as a surprise to people who have emotional attachments to their pets, as opposed to their other personal items.

Further, pets are not generally valued like other possessions such as cars, boats and business interests, unless the pet is used to derive an income, such as in racing, breeding or in competitions. If pets are racing or breeding animals, they are treated as a business asset.

The position that pets are property was affirmed in the matter of Downey & Beale [2017] FCCA 316 where a couple had agreed on every aspect of their family law dispute, except for the ongoing ownership of their dog. The critical evidence was such that whilst the couple was dating but before they lived together, the husband purchased the dog for the wife as a gift and the dog lived with the wife at her parents’ house. The Court ruled in favour of the wife, declaring that she was the owner of the dog as it was purchased for her as a gift. This case shows the approach that the Court will take, in identifying pets as property that can be transferred, gifted and sold, and not as members of the family.

How can Southern Waters Legal Help?

Southern Waters Legal can help in the event you require assistance with your pet custody matter or your family law matter generally. Our team of Solicitors can assist in negotiation, mediation, and proceeding to Court if required. We understand that pets are more than simply “property”, they are your family.

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How can I ensure my pets are looked after when I die?

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As Australia has one of the highest rates of pet ownership you should consider the likelihood of your pet outliving you in your will…

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