How are pets divided in a separation?

What about the fur babies?

Relationship breakdowns are one of the hardest things any person can go through.  We know that this can be even more challenging when there are children involved.  But little focus is often given to the family’s animals and where they fit in from the outset.  For many, “fur babies”/the family’s pets are like children.

The Family Court and Federal Circuit Court however does not see it this way. The Family Law Act (1975) Cth does not make specific reference to pets and they are essentially treated in family law as assets to be adjusted between the parties.  So, just like the car or the caravan, the pets are often allocated to one party or the other.

This also means that the Family Court and the Federal Circuit Court cannot determine the shared custody arrangements for your beloved furry friends.  While some fur parents are choosing to enter into agreements just like a parenting plan for children, or record an agreement by way of a Notation to proposed orders, the Court has no power to enforce these ongoing arrangements.

If a pet is an asset, what is the value?  For some, the answer is: priceless!  For the Court, this is not so clear.  The value of an animal is what the market dictates, so the market value.  Generally, a nominal value is attributed to pets unless they are show dogs or pedigree animals.

What if you can’t decide on who is to keep your pet?  It’s similar to how a determination is made by the Court about who keeps any other asset.  The Court will consider who the animal is registered to, who takes primary responsibility for the animal and where the pet can be appropriately housed.  Past case law tells us that any attachments by a child of the relationship to a pet may be a weighty factor.

Some overseas jurisdictions have moved towards shared care arrangements for pets but, as yet, the Australian Legal system is yet to catch up.

Contact Daykin Family Law today to talk about how we can help you separate amicably and reach an early agreement without running up unnecessary costs.

First published 17 November 2017

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