Pets are considered a man’s best friend who will stay with you through thick and thin. What happens then when the law attempts to break you apart?
In cases where you’ve purchased or adopted a pet with your partner and separated at a later date, it’s important to understand the rules and regulations surrounding pet ownership and whether you’ll be able to keep your furry friend by your side. Read on to learn more!
Pets and family law
There are no specific provisions that deal with pets under the Family Law Act 1975 (Cth). Rather, they are considered as ‘chattel’ and will be dealt with through a property settlement by the Family Court of Australia if orders should be required.
Under section 79(1), the Courts have the power to make orders as it considers appropriate in relation to a property settlement proceeding, including orders for settlement in substitution for interests in property, or for the transfer of property. Essentially, this means that the court can order that property be sold so the parties can divide the proceeds of the sale, or that a party assumes ownership of a given asset. This, of course, includes pets.
Is my pet an ‘asset’?
A common misconception that arises in property settlements is whether pets are an ‘asset’. Despite the love and affection that we provide our beloved companions, the value we attribute to our pets is not reflected by the Courts.
Unless the pet is a pedigree or show-dog or generates some form of income for the owner (for instance, cattle), it will be considered to contain nil value.
Alternative dispute resolutions
Parties are encouraged to utilise alternative dispute resolutions such as mediation to resolve issues surrounding pet ownership before taking matters to Court, given the costs and resources surrounding civil litigation.
Those entering into property settlements or parenting orders are advised to attend upon a registered Family Dispute Resolution Practitioner to resolve the matter. If an agreement has not been reached, the Applicant may apply for a section 60I certificate to demonstrate that they have made a genuine attempt to resolve the dispute on their own before applying to the Court.
However, there are limited circumstances in which a certificate is not required. The exceptions are laid out in sub-section (9) of the Act.
Consent orders
Consent orders are written agreements regarding parenting and/or financial or property provisions that allow parties to formalise agreements and make them legally binding.
If the parties can decide on pet custody, they may apply for a consent order to formalise the agreement.
Before filing, it is important to check the eligibility requirements. This is stipulated under section 44 of the Family Law Act.
- For de facto couples, a consent order should be filed at least two (2) years after the relationship breakdown.
- For married couples, it should be filed at least one year following the divorce.
The court process
If an agreement cannot be made between the parties, the matter may be taken to trial. The Court will consider the following factors when determining who will retain custody of the pet:
- Which party has the financial means to maintain the ongoing costs of the pet; and
- The extent of the relationship that a party may have with the pet; and
- The lifestyle of each party and whether it allows for them to adequately take care of the pet; and
- Which party has the financial means to meet the ongoing costs of maintaining the pet.
The Courts have taken varied approaches when deciding which party will retain ownership. This is demonstrated in the case studies below.
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Animals with an ‘intrinsic’ value – Downey v Beale [2017] FCCA 316
This case concerns a property settlement matter that has been resolved, save for one issue in respect to the ownership of their family dog.
Facts:
Mr Downey (“the husband”) and Ms Beale (“the wife”) had reached consent orders to retain assets that were in their possession or control. One such ‘asset’ that the wife sought to retain was of the family dog.
The husband claimed that the dog should live with him as he had paid for the dog, therefore making him the legal owner.
Meanwhile, the wife claimed that the dog, which she selected herself, was purchased for her as an engagement gift, and that she was responsible for its maintenance and upkeep, as demonstrated through the vet bills and bank statements detailing similar expenditures that were clearly related to the pet. As the couple were not living together at the time, the dog lived with the wife until they started living together. The dog continued to remain with the wife following their separation.
Neither party had attributed a monetary value to the dog. Ownership was sought based solely on their love and affection for him.
Held:
Judge Harman of the Federal Circuit Court of Australia dismissed the husband’s application and found that the wife is and was the owner of the dog under section 78 of the Family Law Act.
While the husband was technically the legal owner, the wife was responsible for the care and protection of the dog. Evidence of the vet bills depicted that they were sent directly to her address, and clearly mentioned her as the ‘owner’. Moreover, the husband had registered the dog eight (8) months following their separation, and with the knowledge that the wife would soon assert her claim over the ownership of the dog. Effectively, his gift was to be considered as a contribution to the relationship rather than evidence of personal ownership and registration of the dog was to be passed over to the wife.
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Animals with an ‘instrumental’ value – Walmsley v Walmsley (No 3) [2009] FamCA 1209
Facts:
This case concerns a property settlement that could not be resolved without a decision made on the ownership of their pet dog. Specifically, Mr Walmsley (“the husband”) gave away the dog he owned with Ms Walmsley (“the wife”) following their separation and could not retrieve it from the seller. The wife did not accept this argument and requested the dog be returned to her. The wife was even prepared to increase the amount she paid the husband, by way of a property settlement, if this could be brought about.
Held:
In the Family Court of Australia, Justice Strickland ordered for a conference to occur between the parties and that that the husband was to provide the name and number of the person who had apparently told him that the pets could not be given back, and that she was to resolve it herself.
This case demonstrates the court’s prioritisation on the recovery of animals to resolve the settlement issue, rather than through a party’s undying love and affection. This is unlike Downey v Beale as the Court has effectively provided instrumental, rather than intrinsic, value to the pet.
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Pets and children – Jarvis v Weston [2007] FamCA 1339
In stark contrast, the case of Jarvis v Weston [2007] FamCA 1339 demonstrates the Court’s differing approach when it comes to children and pets.
Facts:
Mr Jarvis (“the father”) and Ms Weston (“the mother”) had been separated for two years and were in a dispute over the custody of their 11-year-old child, which included where the child would live and where he was to attend school. This also brought into question which party would retain custody of their pet dog.
Held:
Justice Moore of the Family Court of Australia held that the mother was to retain custody of the pet, despite it being owned by the father, as she was also in full custody of their child. This was based on the understanding that “the boy is attached to the dog” and so “the dog is to go with the boy.”
Although the father argued that the Court had no jurisdiction to make decisions surrounding the dog, Justice Moore argued that it was in fact necessary and relevant to the present circumstances, stating:
“whether the issue falls to be considered under the accrued, associated, inherent, or parens patriae (the monarch, or any other authority, regarded as the legal protector of citizens unable to protect themselves) jurisdiction of the Court, it can be found should the need arise”.
The child had also expressed that his father ‘does not take good care’ of their dog as he is locked in a cage and not exercised enough. The child also mentioned that all of the pets he has owned in the past have died, and he was concerned that his dog was befall the same fate, should he remain with his father.
This case demonstrates the extent to which the common law overrides existing statutory frameworks surrounding property settlements and, in limited circumstances, will allow for a more complex judicial approach when it comes to allocating pets to a specific party. Although there are no legal frameworks surrounding the extent of one’s emotional relationship with their pet, it is up to the discretion of the Court to acknowledge and determine the nature of relationships within the context of family law.
How do other countries deal with the custody of pets?
Critics have argued that Australia has fallen behind other Western states, which have come to recognise the rights of animals in the property settlement process in recent years.
Specifically, two American states – Alaska and Illinois – have introduced new laws that now require the Courts to consider the wellbeing of the pet in any custody dispute.
On 17 January 2017, Alaska became the first state in the United States to amend its divorce laws and allow the Courts to consider the ‘well-being of the animal’ in custody disputes involving non-human family members. This came into effect with the passing of House Bill 147, which amended Chapter 24 on Divorce and Dissolution of Marriage, which now emphasises the best interests of the pet.
On 1 January 2018, Illinois became the second state to make these revisions to its divorce laws. Specifically, section 501 of the Illinois Marriage and Dissolution of Marriage Act was amended to permit either party to request, on a temporary basis, sole or joint possession of and responsibility of a ‘companion animal’ that is owned jointly by the parties. The emphasis on the ‘well-being of the pet’ is further emphasised in section 503, which stipulates that Court will allocate sole or joint ownership of and responsibility for the pet where he or she is to be a marital asset.
However, not all Western countries have followed the same route. Under Canadian law, pets are still considered as ‘possessions’ which do not carry with them any inherent rights. In the Canadian case of Henderson v Henderson, 2016 SKQB 282 (CanLII), a case concerning whether dogs were to be treated as property, the judge stated that:
“Many dogs are treated as members of the family with whom they live. But after all is said and done, a dog is a dog. At law it is property, a domesticated animal that is owned. At law it enjoys no familial rights.”
Puppy prenup?
Legal proceedings over your pet’s ownership may be negated altogether if a prenup (or a binding financial agreement as it is known in Australia) is signed prior to marriage.
As long as both parties have sought independent legal advice before signing the agreement, and that there are no vitiating factors that may terminate the agreement, a prenup will ensure that a party retains sole custody of the pet in the event of a separation.
Let us help you with your family law matter
If you’re seeking help with retaining custody over your family pet or any other family law matter, it’s time to find a reliable and experienced family lawyer.
Here at JB Solicitors, we’ll make the process as pain-free as possible. We have fixed-free pricing for family law, giving you a clear sense of the costs from the start and will be sure to help you out every step of the way.
With years of experience under our belt, we pride ourselves in making each client’s family law experience as positive as possible.
Contact JB Solicitors to get started on your family law matter, or for assistance with any other legal matter.
