In Australia, 90% of households have had a pet at some stage in their life, and with more pets than humans in Australia, we are often asked by our clients during their family law matters, ‘who gets to keep the pet’?
Separating couples may find it easy to distribute household items such as the television and the pull-out sofa, however, when it comes to Brutus, the family chihuahua, or Snowballs, the cat, it’s not as straightforward.
Who gets the pet in a custody dispute?
Even though we refer to our animals as ‘fur babies’, pets, pursuant to the Family Law Act 1975 (“the Act”), are considered property in Australia. Therefore, you cannot have a ‘custody dispute’ over your family pet.
The Federal Circuit and Family Court of Australia (“Family Court”) does not have jurisdiction to make shared custody orders over a pet, such as imposing shared time and responsibility between the parties.
Accordingly, pets, like any other property such as your Lord of the Rings DVD set, or the family jet ski, are disclosable and part of the property pool, which will be distributed between the parties either by consent or court order in a disputed matter.
Ordinarily, pets are not considered a significant asset in the property pool, and an Application for Property Orders are not made solely in relation to a dispute over a pet, unless the animal is of a significant monetary value. Nevertheless, disputes over the family pets can often cause heartache.
If you are married, you have 12 months after the date of your divorce to commence an Application for Property Orders in the Family Court (if you are unable to settle the matter beforehand). If you are in a de-facto relationship, you have two (2) years to file an application from the date of separation (if you are unable to settle your de facto property matters beforehand).
In both circumstances, the court may allow an application to be brought out of time, seeking leave to file your Initiating Application for Property Orders, however, you may be subject to adverse costs orders for filing out of time.
Ordinarily, an Initiating Application for Property Orders is made after the parties have attempted to negotiate the disputed issues themselves and/or via their own independent legal representatives, failing which pre-action procedure requires parties to mediate, except if exempted from mediation, prior to an application being filed with the Family Court.
The Family Law Act 1975 provides for a 5 Step test for property adjustment/division between married spouses and de facto partners, which is as follows:
- Would it be just and equitable to adjust the property between the parties;
- What is the property pool (assets minus liabilities) and financial resources of the parties;
- What are the contributions, including financial and non-financial, and homemaker and parenting duties, to the relationship;
- What are the future needs of the parties; and
- Based on the above what would be a just and equitable property division for the parties.
More specifically, if you find yourself arguing over the pet, the Family Court will consider the following in making an order:
- Who purchased the pet?
- Was it a gift?
- Is the pet registered and if so, to whom?
- With whom did the pet reside before, during and after the relationship?
- Does the pet serve as an emotional or service animal to either party?
- Who made the financial contributions towards the pet, such as vet bills, general maintenance, food, etc.?
- Are there children of the relationship, and would it be of benefit to have the pets remain at the children’s regular place of residence.
How to get your property (including your pet) back from your ex-partner?
If your ex-partner currently has your pet, and you believe the pet should be returned to your care, there are several options available to you that we outline below:
- Issue legal correspondence requesting your pet be returned;
- Attempt to negotiate/mediate a resolution with the other party;
- File and initiate an Application for Property Orders (made for property in general, and not just the pet);
If proceedings have already commenced, you may file an Application in a Proceeding for the return of your pet, should you satisfy the necessary legal grounds to do so.
How to prevent arguments over pet custody
In Australia, we do not have prenuptial agreements, which also includes the pet version ‘Pup-Nup’.
Rather, a Binding Financial Agreement (“BFA”) can be entered between the parties.
BFA’s may deal with the parties’ property, which sets out how property and assets are to be distributed upon the breakdown of the relationship. We note that pets can be dealt with in such agreements, which can clearly stipulate what will happen to any pets of the relationship (financial contributions, time and care, etc.), should the parties go their separate ways.
Other measures that may be considered are:
- Registering the pet in your own name
- Having the pet reside at your residence
- Financially contributing to:
- the purchase of the pet
- maintenance of the pet
- vet bills
- pet insurance
- general upkeep
Should you have any questions on pet ownership or property divisions, we would welcome the ability to discuss and advise where necessary. Our team of lawyers provide clear and timely advice and provide services on all areas of family law Australia-wide.
Contact one of our offices today to discuss any legal issues you may have.