When separating, first thoughts may be who keeps the house, or what parenting arrangements will be best for your children. However, for many families, your pet is also an integral part of the family, and this begs the question; who gets the dog, cat, or bird?

For separated couples, it is not always clear who will keep their beloved family pet. Also, separating pets from children or their owners can cause unwanted tension and distress. Parties are therefore encouraged to come to an agreement about where their pet lives after separation.

Despite the significant role your pet plays in your family, in Australia, our Family Law legislation makes no express reference to arrangements for the care of a family’s pets. Therefore, the Family Court must consider your pet as “property”, in much the same way as a car or furniture.

Under s79(1) of the Family Law Act, the Courts can make any order it considers appropriate with respect to the property of the parties. The Court can make an order for the property to be sold or transferred. Animals are typically not included in any property dispute unless they have a substantial monetary value such as a racehorse or show dog or they generate an income, such as livestock. It is almost impossible to place a value on a family pet in a monetary sense.

Some may argue that if the pet is registered in their name, they have the rights to that pet after separation. However, the case of Downey & Beale held that registration is not the sole determining factor. Here the Court found that as the Wife had been the primary carer of the dog, walked and fed the dog daily and had a suitable place for the dog to live after separation, she was awarded the dog in her property settlement.

It is important to remember that if you are requiring the Court to make a determination on who gets the dog (or any beloved pet) your pet will be treated as an asset and the Court will make an Order they see fit, on the evidence available.

If you are going through a separation and need advice in relation to any aspect of your property settlement matters, please contact us for more information on how we can assist you.