Pets’ rights ignored in Family Law Act

When couples separate, family lawyers are often called upon to negotiate the division of assets and to assist in formalising arrangements for the care of dependent children. However, we have observed a growing trend in clients requesting orders or agreements in relation to family pets, commonly called their “fur babies”.

These legal requests are usually to create an agreement regarding the pets’ division of time between households.

As people often treat their pets as members of their family, decisions concerning who becomes the primary carer for the pets can be extremely traumatic for the parties involved and often leads to increased tension and hostility in any family separation. The Courts, however, have very limited capacity to deal with such issues since animals are generally treated as personal property, rather like a television or computer, unless they are used in business for breeding purposes, in which case they may be considered as business assets.

In the Court system, pets do not have rights in the way that a child has rights; that is, the Court is not concerned with identifying the best interest of the pet in terms of a division of property in the same way it is concerned with ensuring the best interests of a child are met by any order of the Court. The Court cannot make an Order for either party to share the care of, or otherwise have visiting rights with a pet.

In limited circumstances, the Court may order that a pet accompany a child during visits between parents’ households, but the inclusion would be only to support the child to feel comfortable during transition between households, rather than any legal recognition of the shared care of a pet.

Given that disputes regarding animals can be as hotly contested as those involving the care of children, perhaps it is time that the Family Law Act was revised to reflect the increasing inclusion of animals as part of the family unit.

Streeterlaw’s Family Law Specialist Simone Green said the changing status of pets as a vital member of many families suggests a revision of the Family Law Act is needed.

“Given that disputes regarding animals can be as hotly contested as those involving the care of children, perhaps it is time that the Family Law Act was revised to reflect the increasing inclusion of animals as part of the family unit,” she said. “For now, however, parties have to be content to have a notation made in their Court Orders concerning the living arrangements for the pet, although, sadly, a notation to a court order cannot be enforced against a defaulting party.”

Private contracts are an option for those wishing to formalise arrangements for the care of pets, however, this requires agreement between the parties. Such contracts can also contain financial provision for the care of the pets, including payment of veterinary insurance and bills.

For any further information or to discuss your particular situation, please contact Streeterlaw’s Family Law Specialist Simon Green on (02) 8197 0105 or email advice@streeterlaw.com.au