Families are usually very attached to their pets and consider them to be a member of the family. The issue of pet custody is not often a dispute before the Courts in Australia but legal precedent has been established even so with a number of cases.
Under Australian Family Law pets are considered “chattels”. Case law has established that the Courts treat pets as property, and capable of being included in the property pool and up for division between the parties. Pets are treated in the same manner as say furniture, motor vehicles and tools and equipment and the Courts have the requisite power to make orders with respect to property including who will have possession of a pet.
Who gets the family pets (failing agreement) is determined by considering the relationship the parties have to the pet’s i.e. who primarily cared for the pet, who paid for the vet care, who has the ability to house the pet. In other instances such as a horse, there could be a cost to stabling the horse.
Does the pet have an attachment to a particular spouse or the children of the relationship? If the children are to live with one parent for the majority of the time then it may be that the pets remain with that spouse, particularly if the children have a strong relationship with the pet and in order to maintain a sense of stability for the children. Separation is a difficult time for families and particularly children, and taking the family pet away from a child could be even more disruptive.
Most pets are domestic household pets and would not have any substantial monetary value attributed to them. If the pet is a pedigree then its value can be taken into account.
There has been a push overseas recently (particularly driven by animal rights activists) for the “best interests” of pets to be considered by the Court. A new law in Alaska in 2017 requires the Court to take a pet’s wellbeing into consideration. Australian experts predict Australia is a long way off from introducing similar laws.
In a recent case the spouses were able to reach an agreement on everything except for the family dog. The Judge recognised that both the Husband and the Wife considered the dog to be fundamentally important to them. The Judge declared the worth of the animal to be “His worth is their love and affection for the creature as they express it”. The Husband had bought the dog prior to the relationship. The dog had lived with the parties jointly during the relationship and at separation the dog lived with the Wife. The Wife paid the vet bills and the cost of caring for the dog. The Husband registered the dog in his name eight months after the couple separated and the Wife claimed ownership of the dog. The Court noted that although the Husband had bought the dog prior to the relationship the Wife had clearly been responsible financially for the costs of the maintenance of the dog. The Court was satisfied that the Wife was the owner of the dog.
It can be a very emotive issue as to who will get the family pet at separation. Perhaps one party will feel very strongly about the issue and it may be a foregone conclusion as to who will be the best pet parent in the circumstances. Ultimately the Court encourages separating spouses to mediate issues between them and to reach an agreement and that includes the pets. And if your little ones have a special relationship with the family pet, it may be in their “best interest” to keep your pet close to them. When family relationships get complicated evidence shows quite clearly the benefits of having a pet on our mental health. Pets bring us joy and comfort and time out with your favourite four legged pal is a remedy in itself!