Who gets the pet? What happens to the dogs and cats (and horse) in a divorce?

Pets are a hallmark of the Australian family with approximately 70% of households having a furry friend of some description. So what happens when the household splits into two? This article will give you the breakdown about how our family animals are treated by the courts following a separation.

Are pets considered assets in a divorce?

Unfortunately, yes. In Australia, there are really only three categories of applications in the Family Court, those relating to property, parenting and divorce. Given that is the case, pets or livestock are typically considered property and are subject to the same laws that govern the division of other property following a separation. This means that the court will determine how to divide pets in a way that is fair to both parties, just like they would with any other property. While we use the term ‘custody’ in this article for the sake of easy reading, the Courts consider that parties own pets rather than have custody of them.

For more information about how an application from divorce is separate to any application relating to property or animals, see our article about Getting a Divorce in Tasmania.

How the Courts Decide Who Gets the Pets After a Separation

There are certain factors that will influence a Court’s decision on who is the ultimate owner of an animal, such as:

• Who purchased and paid for the animal initially;
• Who primarily cares for the pet including grooming, feeding and exercising;
• Who the pet has a closer bond with, this may include children of the household;
• Who is better able to financially care for the pet, potentially including consideration of who has the ability to maintain any existing insurance over the pet; and
• If the animal is registered for breeding, who is the registered owner who has maintained the registration for breeding purposes.

Does it make a difference if the pet is not a standard household animal such as a dog or a cat?

It is important to remember that pets are usually not going to be a substantial part of the asset pool unless they are for breeding or part of a business enterprise such as livestock or a racehorse. This means that, although you are emotionally invested in your animals welfare, the Court will not be able to spend days listening to arguments at final hearing only relating to your pet. If the parties are unable to agree on the division of the pets, then the court may make a decision based on the best interests of the animal itself.

In the event that your pet is not the standard run of the mill Labrador or Cavoodle, if the animal is actually part of a business enterprise or worth significant money then it may form a more valuable part of the asset pool. For example, where the horse is a racehorse worth $100,000, the Court may look at the asset pool as a whole and determine how to compensate the party who is not going to keep the horse for the loss of any opportunity or value of such a significant asset.

Can I protect my right to keep my pet in case we separate?

Because pets in Australia are considered property for the purposes of family law, they can be protected by entering into a ‘pre-nup’ or Binding Financial Agreement. These agreements allow you and your partner to agree, before or during a relationship, what will happen to any of your assets in the event of a separation, including who your beloved family pet will live with. We have provided more information about protecting assets in our article about Splitting Assets in a Divorce or Defacto Separation.

Is there such a thing as shared custody of animals?

It’s important to realise that a Court will not grant ‘shared custody’ over pets and if you want Orders allowing shared custody, you will have to make them by agreement with your ex-partner. This is because pets are considered part of the asset pool and the Orders of the Court are meant to finally determine ownership. 

If you are considering negotiating an agreement for shared custody of your family pet, you should think about:

• Whether you want continued involvement with your ex-partner, particularly if you don’t have any other reasons to keep in contact. Shared custody can work, but only where both people maintain good communication. Open discussion will ensure that your pet is getting the same treatment at both households including bedding, type of food, toys etc;
• What is best for the pet. Depending on your living situations it might be stressful for your little one to be going between households as many pets, particularly dogs, like routine;
• What happens if the pet gets ill? Who will pay the medical costs or make the decisions in an emergency?
• What is best for any children involved and how much they will see the pet. With shared custody of a pet, it’s always important to remember that children will be present at the handover.

It is important to note that while pets are considered property in the eyes of the law, they are still living beings with emotions and needs. It is essential that any decision made regarding the division of a pet takes into account the well-being of the animal as a paramount consideration above how we feel about our furry friend.

Overall, the treatment of pets in divorce cases in Australia can be a tricky and emotional topic. It’s important for couples going through a divorce to consider the best interest of their pet and reach an agreement that is fair for both parties and the pet. Call us now for a discussion about your specific circumstances and how we can help.