Who gets your pet?  How Australian Courts deal with Pet Custody Laws.

Pet custody determines who gets ownership and responsibility for a pet after the owners separate or divorce. In many legal jurisdictions, pets are often considered personal property, similar to other assets.

However, custody disputes can arise due to the emotional bond between humans and their pets, like those involving children.

How Do Australian Courts Determine Who Gets The Pet After A Breakup?

Pets are generally considered personal property under the law. This means they are treated similarly to other assets during the property division in a breakup or divorce.

Here’s how Australian courts typically approach this matter:

• Property Consideration: Pets are legally seen as property. Therefore, if a pet were acquired during the relationship, it would typically be treated as a joint asset. If acquired before the relationship, it might be considered separate property belonging to the original owner.
• Contributions: The court may examine each party’s financial and non-financial contributions. This includes who paid for the pet, its care (like vet bills), and daily responsibilities such as feeding, walking, and training.
• Welfare of the Pet: While pets are not treated the same as children in custody battles, some judges may consider the animal’s best interest. This might involve looking at who has been the primary caretaker and where the pet might be more comfortable or safe.
• Formal Agreements: If there’s a pre-existing agreement (like a prenuptial agreement) that outlines pet custody, the court might take it into consideration. Though, like other aspects of such agreements, its enforceability can vary.
• Joint Custody or Arrangements: While not as formalised as child custody arrangements, some separating couples opt for joint custody or shared arrangements for pets, where the pet spends an allotted time with each party.
• Mediation and Resolution Outside of Court: Many couples mediate the issue outside of court to find a mutually agreeable solution due to the nature of pet custody disputes.

It’s important to note that while the above provides a general overview, each case is unique. The outcome can vary based on the specifics of the situation and the perspectives of those involved. Consulting our knowledgeable family lawyers would provide the most accurate and up-to-date information on pet custody decisions.

Is Joint Custody Of Pets Possible In Australia?

Yes, joint custody of pets is possible in Australia, although it’s not formalised in the same way that joint custody of children is.

Since pets are legally regarded as personal property in Australian law, there isn’t a standard legal framework for joint custody arrangements.

A Court will not make orders formalising any custody arrangements. However, separating couples can choose to establish their own informal agreements or arrangements for shared pet care.

Here’s what to consider:

• Informal Agreements: Many couples opt for an informal agreement where they decide on a shared care arrangement for their pet. This could mean the pet spends alternate weeks with each person, weekends with one and weekdays with the other, or any other arrangement that suits both parties and ensures the pet’s well-being. Bear in mind though, these agreements are not enforceable.
• Written Agreements: To ensure clarity and avoid potential disputes, some couples might draft a written agreement outlining the specifics of the joint custody arrangement. While not a formal court order, having a written agreement can provide a clear reference point for both parties.
• Mediation: If disagreements arise about the joint custody of a pet, couples can opt for mediation services. Mediation can help parties come to a mutual agreement without resorting to litigation.
• Pet’s Welfare: Any joint custody arrangement must prioritise the pet’s well-being. Moving between households can be stressful for some animals, so the arrangement should be made with the pet’s best interests in mind.
• Legal Advice: While joint pet custody is largely informal, consulting with a lawyer to understand potential legal implications or draft a more formal agreement might be beneficial.

Can I Claim Ownership Of A Pet Based On Financial Expenses?

While pets are legally considered personal property, covering financial expenses may not be sufficient to claim outright ownership. Financial contributions, such as paying for the pet’s purchase, veterinary bills, food, and other care expenses, can be considered in a dispute over ownership.

However, they are just one of many factors the courts may evaluate. It’s essential to have evidence of these expenses, such as receipts. Moreover, other considerations, like the pet’s primary caregiver, any pre-existing agreements, and the pet’s overall well-being, can also influence the determination of ownership.

Who Gets The Fur Baby After Divorce Or Separation: [1]Gaynor & Tseh [2018] FamCA 164

In Gaynor & Tseh [2018] FamCA 164, the husband asked the Family Court to return the family dog from the wife, who was taking care of it. The husband said that he was the legal owner of the dog and that he had put a lot of money into taking care of it. The wife said that she cared for the dog the most and that it would be best for her to stay with her.

The Court stated that the Family Law Act 1975 (Cth) considers them property, therefore do not have the power to make a decision. They also decided they would not intervene as both sides would be able to care for the dog.

If you would like to discuss your separation or the custody of your pet, please contact Solari and Stock on 8525 2700. 

Article by Kate Allenby
Photo by Krista Mangulsone on Unsplash