Paws, Claws, and Legal Cause: Who Gets the Pet in a Breakup?
Family law matters have historically been matters relating to divorce, parenting arrangements, property settlements and the like. But what about our furry friends? Once a couple separates, how does the Court decide who is to retain the family pet.
One question that we do get asked a lot is how pets are taken into account in a separation. Under the current legislation, pets are considered to be property. Generally, pets will not be considered as an asset in the property pool and the ownership of a pet following separation should be practically determined between the parties. However, some animals which can be considered to have a monetary value, such as horses and livestock, show dogs, animals for breeding businesses etc. could have a value appointed and be included in a property pool.
New provisions for our furry friends will take effect on 10 June 2025 under the Family Law Amendment Act 2024 (“the Act”). The Act will deal with our furry friends as ‘Companion Animals’.
What are ‘Companion Animals’?
Family pets now are defined within the Act as a “companion animal” and their definition is as follows:
“an animal kept by the parties to a marriage or either of them, or the parties to a de facto relationship or either of them, primarily for the purpose of companionship, but does not include assistance animals, animals kept as part of a business, animals kept for agricultural purposes or animals kept for use in laboratory tests or experiments.”
Given the broad definition, any species of animal has the potential to be a companion animal for the purposes of this definition. An animal can only be a ‘Companion Animal’ if it is owned by the parties to a marriage or de facto relationship (or either of those parties).
What about animals that have economic value (as well as emotional value)?
Animals that have a high economic value and are not used for companionship would be dealt with by the Court in the same way as any other types of property in the property pool available for division the parties. (See our Property Settlement FAQ information on how property is divided under the Act).
Examples of animals that may be considered to be part of the property pool with an economic value could be show dogs, breeding dogs, working farm dogs, horses, livestock etc.
What factors are considered when deciding who retains the Companion Animal?
Companion animals are also now to be treated as property in proceedings under the Act. If an animal is considered to be a Companion Animal, then the Court will be required to consider the new list of prescribed considerations for determining ownership of a companion animal.
The factors are as follows:
how the companion animal was acquired;
who has ownership or possession of the companion animal;
who cared for and/or paid for the maintenance of the companion animal;
any family violence to which one party has subjected or exposed the other party;
any history of actual or threatened cruelty or abuse by a party towards the companion animal;
any attachment by a party, or a child, 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;
any other fact or circumstance which should be taken into account.
It must be noted that the Court can only make an order under the Act that one party owns the companion animal, or an order that the animal be sold. This means, the Court cannot make orders where the companion animal is shared between the parties. The new legislative change is consistent with the current approach taken by the Court in that regard.
The main take away is that whilst we now have specific considerations within the Act that relate to companion animals, the general position in relation to animals aligns with the previous understanding that your regular household pets, dogs, cats, birds etc. while treated as property do not have a value and form part of the property pool. But non-companion animals may do so on a case-by-case basis. The new factors in the Act can be considered by the parties when determining between themselves who should keep the family pet.
If you need advice regarding your family law matter, whether this relates to family pets or not, our experienced Family Law team at Harwood Andrews can assist. Contact us to arrange an initial consultation.
Ivy O’Dwyer
Associate
T 03 5226 8582
E iodwyer@ha.legal
Tara Paatsch
Principal Lawyer
M 0412 660 842 | T 03 5225 5254
E tpaatsch@ha.legal
Bridgette Kelly
Principal
M 0438 714 965 | T 03 5225 5275
E bkelly@ha.legal
