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Who gets the pet in a family breakdown?

Date:
By Kasey Stewart
Category: Family Law

 

For most animal lovers, your pet is a part of your family. So it is no surprise that I am often asked for advice on what happens with the family pet.

Common questions that I get are:

1. Who gets to keep the pet?

There is no easy answer to this. There is no mention of pets in the Family Law Act, so essentially your pet is just another piece of property in your matrimonial pool.

Things that a Court may take into consideration are:

  • Living arrangements of the parties (ie do you have a fence for a dog, or rental accommodation restrictions)

  • Where the children will be living predominantly

  • Special needs of either party or the children (ie, physical or mental disabilities)

  • Special relationship or bond between a party or child and the animal

  • Registration of the animal

  • Whether the animal was owned by either party before the relationship commenced, or bought as a gift

  • Financial capacity to keep the animal (ie food, vet bills, medications etc)

None of the above factors will necessarily be determinative of the dispute.

2. If I don't get custody of my pet, can I get visitation rights?

As I mentioned above, animals are treated as property.  Section 81 of the Family Law Act provides that it "is to make such Orders as will finally determine the financial relationships between the parties".

This does not mean that you cannot make an agreement with your former partner to spend time with your pet, but the enforceability would be limited.

I have seen cases where a family pet travelled back and forth between homes each week with the children, agreements for the other party to breed a purebred dog, and a childless couple who agreed to share the care of a pet.  

It is an area of dispute that in my experience, that Judges tend to have little time or enthusiasm for. I encourage you to reach an agreement with your former partner about your pet, rather than relying on legislation that is not purpose built for a dispute about your beloved family member.