What happens to pets in a separation?
Australia has one of the highest rates of pet ownership in the world. According to the RSPCA, approximately 62% of Australian households own one.
Despite the prevalence of pet ownership, Australian legislation does not give much direction as to what happens to pets in a separation. If there is no agreement about this, separation and divorce can no doubt become more stressful.
Going by case law, pets are generally treated as property. Since the Family Court has power to make orders with respect to the property of parties to a relationship, it will then be able to determine which party retains possession of a pet.
Think of pets in the same way as typical personal property, such as cars or artwork. They too become included in the asset pool for division between the parties. However, this is easier said than done. Most pet owners are more attached to their pets than their household furniture!
How do I put a value on our pet?
Your pet may have been a loyal companion through good times and bad times. They may have been around longer than your children. Pets basically become family members in their own right. The very idea of trying to determine their “value” can be incredibly difficult and uncomfortable.
In any event, the Family Court will usually attribute a market value to a pet. This is usually the reasonable purchase price at a pet shop or breeder, rather than an emotional value. For example, a pedigree show dog may have a significant value in the asset pool whereas a mix-breed dog may not. If there is disagreement as to the market value of pets in an asset pool, a sworn expert valuation may be required as evidence.
What factors are considered?
When deciding what happens to the pets in a separation, the Family Court will consider the merit of each parties’ application on a case by case basis.
The Family Court may look at a variety of factors that are applicable to the case at hand. These include but not limited to whichever party:
- registered the pet;
- assumes the majority of responsibility in relation to caring for the pet;
- has suitable housing for the pet; and
- has majority care of any children who are significantly attached to the pet.
It is important to remember that the care of pets falls under the umbrella of property proceedings. The Family Court does not need to consider the “best interests” of the pet, as it does when considering prospective care arrangements for children.
The Family Court can make orders for parties to share ownership of the family pet after separation. However, it is rare for this to occur without the agreement of both parties. Shared ownership is particularly unlikely in the context of Section 81 of the Family Law Act 1975. This is because it stipulates the duty of the Family Court to end financial relations between parties.
Where to now?
Generally, it is best if you and your former spouse can come to an agreement outside of the family court. After all, you both will likely a better understanding of your pets needs, than a Magistrate or Judge. Mediation can be a useful way to work out what happens to the pets after separation.
If you are able to reach an agreement and you need it to be legally enforceable, provisions for the pet must be reflected in:
- A Form 11 Application for Consent Orders; or
- A Binding Financial Agreement.
Otherwise, you may make an application to the Family Court for property orders, which include your pet, if you are unable to reach an agreement.