When couples separate, deciding who retains the family pet can become a contentious matter. Pets are often considered cherished members of the family, and both parties may have formed deep emotional bonds with the pet over the course of their relationship. Additionally, they may have also shared responsibilities such as feeding, grooming and walking the pet, and each party may feel that they are the best caregiver for the pet.

There are no specific provisions for pets in the Family Law Act 1975 (Cth). The Court does not have jurisdiction to make time arrangements in relation to a pet, as it does in parenting matters. Instead, pets are considered assets similar to a house or car.

While pets are legally considered assets, their emotional value often far exceeds their monetary value. In most cases, pets are of relatively low financial value unless they possess significant monetary value, such as racehorses or pedigree dogs used for breeding.

The recent case of (Davenport & Davenport (No 2) [2020] FCCA 2766) reaffirmed the legal classification of pets as property rather than individuals with legal rights or interests. In this particular case, Her Honour, Judge Tonkin encountered a jurisdictional issue when the Husband sought orders for shared custody of the parties’ dog, and stated “The court is aware that for many people pets are regarded as members of the family however there is no provision under the Family Law Act and no specific legislation that deals with issues such as the “custody” of a pet whether that be a dog, cat, bird, lizard, fish or any of the wonderful creatures that we share on the planet with that would empower a Court to make Orders for shared custody of a pet.”

Some of the factors the court may consider when determining pet ownership are:

1. Registered Ownership: Who is the registered owner of the pet? Who did the pet reside with prior to the relationship?
2. Financial Expenses: Who was responsible for payment of costs, including pet insurance, veterinary bills, and food costs?
3. Accommodation: Who can provide suitable accommodation for the pet?
4. Maintenance: Who cares for the pet, for example feeds and walks the pet?

The best approach to resolving pet ownership disputes is negotiation. If parties cannot reach an agreement, seeking legal advice from an experienced family lawyer can help navigate this process. Formalising agreements through Consent Orders or Binding Financial Agreements can provide clarity on pet ownership post-separation.

Separation can be emotionally taxing, especially when it comes to shared assets like pets. Understanding the legal framework and seeking amicable solutions through negotiation or can help mitigate conflict and ensure the well-being of beloved fur babies post-separation. Remember, while pets are cherished members of the family, the law views them as property, and navigating their ownership requires careful consideration and legal guidance.