Who Gets Pet Custody In A Separation?
Written by: Adam Wightman l Legal Team
Pets are often much loved (and at times very expensive) members of the family. They are there for you when times get tough, and they provide you with unconditional love. However, what happens to the pets when their owners go through a family law separation? Who gets the custody of a pet?
Pets + The Family Law Act
Issues associated with the breakdown of a marriage or de facto relationship are legislated in the Family Law Act 1975 and are administered through the Family Court (now known formally as the Federal Circuit and Family Court). The two main areas that the Family Law Act deals with are the parenting arrangements for (human) children and the division of assets, liabilities and financial resources between separated spouses.
However, there are no specific provisions of the Family Law Act that deal with the custody of pets. So, where do pets fall within the Family Law Act?
Well… it turns out they are considered to be ‘property’ or an ‘asset’ of the relationship in much the same way as a car, boat or washing machine. However, there are some differences in the way the Court approaches disputes regarding their custody.
How Do I Secure Custody of My Pet?
The process that separated spouses should follow to determine who retains the custody of a pet is much the same as with any other asset.
Negotiations
The first step is to attempt to resolve the matter by way of direct negotiations with your former spouse, to see whether you can come to an amicable agreement. These negotiations can occur directly between you both by way of verbal discussions or the exchange of written correspondence such as emails or text messages.
However, if you are uncomfortable or having difficulty communicating directly with your spouse, then there are two main options available to you as part of the negotiation process:
- You can participate in Family Dispute Resolution Mediation (with or without the assistance of a family lawyer); or
- You can engage a family lawyer to conduct the negotiations on your behalf directly with your former spouse, or any lawyer that he/she may engage.
Agreement or Non-Agreement
Any agreement that is reached as part of the negotiation process will not be legally binding until such time as lawyers take the agreement and have it formally approved by the Court as a legally binding Court Order.
If the family lawyers are unable to reach agreement regarding the custody of your pet, then it may be necessary for one of the separated spouses to initiate proceedings in the Family Court. However, at least one of the parties must have at least attempted mediation before Court proceedings can be initiated. These Court proceedings may also include other issues between the spouses that remain in dispute such as parenting arrangements for children and financial settlement matters.
The parties will be given numerous opportunities throughout the Court process to agree on arrangements, failing which they will progress to the ‘Final Hearing’ or ‘Trial’ where the Judge would make a decision as to who should have the possession of the pet. However, it is rather rare that any family law matter makes it all the way to a final hearing, and it is even more rare that the stand-alone issue of pet custody would ever make it to this final stage.
What Factors Would a Court Look At To Determine Who To Award Custody Of A Pet To?
If Court proceedings were necessary, and the matter proceeded all the way to a final hearing, the Court would examine the following issues to determine who to provide custody of the pet to:
- Who has been the registered owner of the pet with the local council?
- Who was the one who most wanted to acquire the pet?
- Who paid for the pet?
- Who primarily cared for the pet (including feeding, training and vet visits) during the relationship?
- Who has primarily cared for the pet since separation?
- Is there any child of the relationship who has an attachment or emotional relationship with the pet, and if so, where does that child primarily reside?
Whilst separated couples may wish to argue over who has the biggest backyard or the best facilities to care for the pet etc., the Court will not necessarily take these factors into consideration when making a decision on who will retain custody of the pet. This is because the pet is still viewed essentially as an asset, and the ‘best interests’ of the pet itself are not a determining factor (unlike the custody disputes regarding human children where the primary factor to consider is the child’s ‘best interests’).
If I Am Not Awarded Custody Of The Pet, Will I At Least Have Visitation Rights?
Parenting disputes regarding human children are generally resolved by way of Orders being made for the child to reside primarily with one parent and to ‘spend time’ (including overnight time) with the other parent. Where parents cannot agree on these arrangements, the Family Court has the power to impose these types of arrangements.
However, the Court will typically not impose Orders that require the parties to share the care of a pet. One of the Court’s main focuses when determining the division of assets is to ensure that the parties’ financial relationship is brought to an end and that their assets do not remain entangled. Given that pets are considered to be an asset, the Court may be very hesitant to impose any sort of shared pet ownership type arrangements.
However, as discussed above, very few matters regarding pet ownership make it all the way to a final Court hearing where the Judge makes a decision. As such, there are very few cases available to lawyers from which to provide advice as to likely outcomes.
Canny Legal + Expert (Pet) Legal Advice
Court proceedings can also be extremely expensive. Therefore, the old adage that ‘possession is nine tenths of the law’ is very relevant when it comes to pet ownership amongst separated couples. We therefore recommend that you ensure that your pet remains registered in your name and that you attend to its day-to-day care during any relationship, and you ensure that your pet remains living with you in the unfortunate event that you separate from your spouse.
Get in touch with our team to find out where you stand when it comes to the custody of your four legged furry friend, axolotl, guinea pig or pet rabbit!
