Who gets the family pet when couples separate?

One of the questions we are often asked in a family law context, is “What will happen to our pets?”

From a family’s point of view, a pet is often considered part of the family. The legal principle, however, with respect to pets, is that a pet (any animals, including companion animals) remain classified as the personal property of their owner (otherwise referred to as a chattel).

In a recent Federal Circuit Court of Australia matter, known as Downey & Beale [2017] ACCA 316, the Court had to consider this very issue. The parties had reached a property settlement by consent, but had competing claims regarding the ownership of their pet dog. In assessing the competing claims, the Court stated it first had to determine the:

1. Net assets and liabilities of the parties; and
2. Whether would be just and equitable for an order to be made on the competing claim.

Having regard to the above two points, the Court was satisfied that it had jurisdiction to make orders in relation to the pet dog. Since the dog’s worth was tied to the owners’ love and affection, rather than any monetary value, the Court needed to determine “whether any change should occur to ownership of the dog as it presently exists”.

The court examined the evidence presented by each of the parties, with answers to the following questions being key to determining ownership:

1. Who paid for the dog?
2. Was the dog given to one of the parties as a gift?
3. Was the dog was registered, and to whom is it registered?
4. Who does the dog live with?
5. Who contributed to, or was responsible for, the maintenance and upkeep of the dog?

Ultimately, the wife was considered to be the dog’s legal owner, even though the husband had paid for the dog. The wife had possession of the dog, contributed to the dog’s care directly and financially, and was responsible for the maintenance and upkeep of the dog. It was concluded, under those circumstances, that it would not be appropriate to make an order varying ownership.

As with any case in Family Law, each matter will be determined upon its own facts. It is imperative, when seeking legal advice, that you ensure that the legal status of your pet is not overlooked when you prepare, negotiate, or seek to settle your property and/or financial matters.

Please contact Streeterlaw for further information or to discuss your personal circumstances and how we can help you on 8197 0105 or email advice@streeterlaw.com.au