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Who Keeps the Family Pet?

Family Law: 27 July 2022

During lockdowns, it seems a number of families and couples took the opportunity to purchase a pet. In fact, it is now estimated that nearly 61% of households in Australia own pets, with dogs being the most common (40%).

It makes you wonder, what happens to our beloved furry friends in the event of a relationship breakdown? Which party ultimately gets custody of the pet?

Given that pets form an integral part of families, it is important to know how pets are treated during separations, as it can otherwise cause a great deal of stress.

Does the court have power to order shared custody of a pet?

This issue was specifically dealt with in the case of Davenport & Davenport (No 2) [2020]. In this matter, the Husband sought the following:

  • That the dog be in his care for two days/nights per week;
  • That he collect/deliver the dog from/to his wife at an agreed location; and
  • That he contributes $20 per week towards the care of the dog.

The Husband's Application was dismissed for lack of jurisdiction with the Judge stating:

"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 "custodyof a pet whether that be a dog, cat, bird, lizard, fish or any of the wonderful creatures that we share the planet with that would empower a Court to make orders for shared custody of a pet.

As such, in Australia, pets are considered property, much like a house or a car. If you and your ex-partner are in dispute over who gets custody of a pet, the Court will approach the issue in the same way it would when deciding who retains every other item of property.

What Factors Will the Court Consider?

As with property, legal ownership does not determine who will ultimately retain ownership in family law matters. Factors that are often taken into account will include:

  1. The pet's registration with Council and microchip;
  2. Who wanted to purchase the pet initially and who purchased the pet;
  3. Who cared for and fed the pet;
  4. Who trained the pet and took it for walks;
  5. Who took it to the vet; and/or
  6. Who pays for the insurance.

Sometimes pets have a significant monetary value (i.e., a pedigree dog or a racehorse). If this is the case, the value of the pet will be used when determining the overall property settlement.

It is also important to consider the impact or extent of any emotional relationship/attachment to the pet parties or children involved in disputes may have with the pet. In the case of Jarvis & Weston [2007] the Court ruled the Mother was to retain custody of the family dog (despite the Father, for all intents and purposes, owning the dog) because the child had a significant attachment to the dog and the Mother was the child's primary carer. Ultimately, the Judge in this matter stated, "The boy is attached to the dog. The dog is to go with the boy.

Please contact our Family Law Team if you require advice about the custody of pets or any other family law-related matter.

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