Pets are often an important part of the family. As of 2022, it is estimated that there were 29 million pets across 69 per cent of all Australian households. Naturally, when couples separate one of the emotionally fraught issues can be who gets the pet. These tensions can also be exacerbated for the one in four couples who do not have children.
Legal position in Australia
Under Australian family law, pets are classified as personal property and therefore become part of the asset pool in property settlements. This means that pets are treated in a similar way to other household items that need to be distributed between parties. Disputes about who should keep a pet after separation are rarely decided by the Court. Rather, the Court expects separated couples to attempt to come to an amicable agreement relating to property with little monetary value through other means such as mediation.
Where parties cannot come to an agreement, the Court will intervene. Some factors that are considered when determining who keeps the pet include:
- Who purchased the pet?
- Whose name is the pet registered in?
- Who pays for the insurance?
- Who feeds the pet?
- Who cares for the pet?
A decision of the Court will be binding. Parties who wish to avoid legal disputes about pets should consider entering a binding financial agreement over the pets (“pet-nups”). It is worth noting however that the law cannot enforce any visitation agreements for pets agreed to in a pet-nup, and that these documents are merely a way for parties to establish ownership rights.
Scope for change?
There is a growing push for pets to no longer be treated as personal property, and for the law to recognise animal rights. Despite this, it is very unlikely that Courts will treat pets as anything beyond personal property without legislative reform from Parliament. This is because there is a long history of case law which entrenches this position. However, there is a growing trend toward animal rights recognition in family law internationally. Jurisdictions such as Spain now recognise pets as “sentient beings” whose wellbeing should be considered when determining which party should get custody. Additionally, whilst some jurisdictions such as New Zealand still consider pets as family property, the primary consideration will be the welfare and best interests of the pet where disputes arise.
Pets in family violence
Unfortunately, animals are often used by perpetrators of family violence as a method of fear and intimidation. Perpetrators may threaten or commit acts of violence toward a family pet as a means of controlling their partner. 70 per cent of women fleeing family violence report that their pet had been abused and concern for a pet’s welfare can often be a reason why victim survivors delay leaving violent relationships. An additional challenge that victim survivors seeking refuge face is that not all family violence services can accommodate pets. Additional government funding may be required to bolster these services’ capabilities. Victim survivors concerned about their pets’ wellbeing should contact groups such as FVREE and Safe Steps for further advice, options and support.
It is also worth noting that in Victoria, animal abuse is classified as a form of family violence under the Family Violence Protection Act 2008 (Vic). This means that animal abuse may now form the basis of an Intervention Order to protect a victim survivor and their pet.
If you or someone you know requires assistance with a property settlement or family violence involving a pet, please do not hesitate to contact our office on 03 9670 4122 to arrange an initial consultation.