Who gets the dog?
So, you’ve made the decision to separate and now you’re wondering how to divide your shared assets… Where do your pets fit into this new chapter?
While many of us think of our pets as ‘fur babies,’ in Australia, pets are legally considered property and are not treated the same way as children during a separation. When it comes to dividing assets, pets are included in the property settlement, and the key question often becomes, ‘Who owns the pets?’
The Family Law Amendment Bill 2024 has proposed significant changes regarding the treatment of pets to better align with the emotional attachment we form with our pets. Historically, pets were treated as “property” which meant that they were often treated the same way as physical assets like furniture or cars:
The Family Law Amendment Bill 2024 proposes a change that will recognise pets as “Companion Animals” – acknowledging the emotional attachments between people and their pets.
Courts are now required to consider:
How a pet was acquired
What type of care each party provides to the pet (who feeds it, who cares for it)
Who has possession of the pet
The financial and non-financial capacity of parties to provide for the pet into the future
Whether family violence is a factor – for example has a party to the dispute threatened the family pet or used it as a means of exerting power and control over the other party.
Unlike parenting disputes, “shared care” of pets is not provided for. The Court can only assign ownership of a family pet to one party.
All of these factors help determine the overall ‘ownership’ of the pet in question and will ultimately help you decide if keeping the pet independently is something you can commit to either jointly, solo, or not at all.
Include your pets in your BFA
Some couples may choose to pre-determine their financial position at separation in what is known as a Binding Financial Agreement (‘BFA’). This gives you a clear understanding about how your assets will be dispersed. There is nothing stopping you from including your pets in these prenuptial, postnuptial or de facto financial agreements.
You can reach your own resolution as to a “shared care” arrangement for your pets if you choose to, along with ways you might meet costs such as grooming, training, vet bills, insurance, etc.
What happens if we can’t seem to agree on anything?
It might be surprising to know that currently, the Courts aren’t guided by legislation when addressing the living arrangements for your pets in terms of their best interests.
It remains open as to how the Court will implement and interpret the new amendments to the Act (noting that at the time of publication of this blog the Bill had moved through to the second reading in the Senate on 11 September 2024.)
So in the absence of a formal agreement, you will need to consider what makes sense for you and your pets.
Some things to think about:
Do you both want to remain involved?
If you have children, what might be in their best interests in terms of arrangements for your pets?
Will you have new living arrangements, and are they suitable for your pet?
How will you make important decisions about your pet if it were to become ill or injured?
What financial commitments are involved?
There is no ‘one size fits all’ approach to pet custody arrangements, as with so many things, everyone’s situation is different and only you know what is best for you and your pets. If neither you, or your former partner, can keep your pet, or no agreement can be reached, you might need to consider other options, including rehoming your pets.
