Separation – Who Keeps the Family Pet?

Separation – Who Keeps The Family Pet? – The Law Has Changed

To many people, pets feel like their Children. So, what happens to our beloved pets if we separate with our de facto partner or spouse? Who gets to keep the family dog or cat?

This question becomes even more emotionally charged when care arrangements for Children change post separation. For example, Children may get upset if they are living primarily with one parent and the family pet is living with the other parent. 

Interestingly the law is about to change to better address this point.

How is the Law Changing?

On 11 June 2025, the law will be changed to better accommodate arrangements for family pets in separations.

Previously, pets were considered to be property of the parties and treated as any other personal possession. From June 2025, pets will be considered to be “companion” animals and will be part of a specific category of property.

Accordingly, different considerations will apply when dealing with companion animals than when dealing with other property.

Factors that could be taken into account to decide who will retain a family pet are as follows:

• The circumstances in which the companion animal was acquired;
• Who has ownership or possession of the companion animal;
• The extent to which each party cared for, and paid for the maintenance of, the companion animal;
• Any family violence to which one party has been subjected or exposed to by the other party during the relationship;
• Any history of actual or threatened cruelty or abuse by a party towards the companion animal;
• Any attachment by a party, or a child of the relationship, to the companion animal;
• The demonstrated ability of each party to care for and maintain the companion animal in the future, without support or involvement from the other party; and
• Any other fact or circumstance which, in the opinion of the Court, the justice of the case requires, to be taken into account.

What was the law previously?

Points (a) to (c) above are a reconstitution of the general considerations of a Court when making a decision in a property matter. Meaning that the Court is already required to consider the financial and non-financial contributions of each party to an item of property.

Accordingly, who paid for the pet, contributed financially to the pet, and/or cared for the pet during the relationship are all relevant factors in deciding which party gets to keep the pet.

For example, Sarah and Alex both want to keep their Family cat, Mittens, in their separation: 

1. Sarah paid the initial purchase price for Mittens (consideration a).
2. Sarah moved out of the family home and took Mittens with her (consideration b).
3. Sarah continues to pay for all of Mitten’s expenses and vet bills (consideration c).
4. Both Alex and Sarah love and care for Mittens equally (consideration c).

The Court is likely to consider that Sarah has made higher financial contributions to Mittens because her financial contributions are not outweighed by another factor or consideration. It is more likely that the Court will Order that Sarah can keep Mittens in the property settlement.

What has changed?

Previously, Courts were not required to specifically consider points (d) to (g) above. Meaning that any history of Family Violence, threatened or actual animal cruelty by one party towards the animal, any attachment by a party, or a child with the animal, and any demonstrated ability by either party to independently care for the animal are now all relevant considerations by the Court.

Importantly there is no case law on the weight to be given to each individual consideration under the new legislation. It is not yet known how judges will interpret and apply this section.

Other considerations

Other facts or circumstances which may be considered may include whether the pet was given as a gift or if the pet is a support animal to one of the parties. 

• If the pet was given as a gift, the court may look at factors such as who the dog for instance was bought for and the intention of the parties at the time of purchase. 
• If the pet is a Support or Assistance Animal, it will normally end up with the party who it assisted in the past and has the need for continuous assistance of the animal. However, this pet will have a value which will form part of the asset pool.

Is shared custody/joint ownership of the family pet possible?

Unfortunately, the Court does not have jurisdiction under the Family Law Act to make orders for shared custody for pets. However, where the parties have more than one pet, the Court could decide to separate the pets as they are regarded as property of the parties.

The law does not recognise pets as children

It is important to understand that the law does not recognise pets as Children. Pets are treated as property in family law proceedings. Accordingly, the best interest principles which apply to Orders made for the care arrangements of Children do not apply to pets.

Conclusion

What is most notable about this change, is that the additional considerations better deal with the complexities of pet ownership. Unlike other personal property, Pets are living beings which are deserving of appropriate care and comfort. It is fitting the court take additional care when considering which party should retain a pet.

It is encouraged that the parties, with assistance of experienced solicitors, work to resolve these issues rather than ending up in Court.

If you need assistance with any of the above, please don’t hesitate to give our office a call on 07 5526 0167 to speak with one of our highly qualified and experienced family lawyers or email [email protected].