Who Gets The Dog When We Separate?

When a couple separates, their asset pool is dealt with in a property settlement, while arrangements for the care of children are made in a separate proceeding, in the form of parenting orders. But what about the family pets? How do courts decide who gets the dog, cat or other animals?

The Family Law Act and animals

There is no specific provision dealing with animals under the Family Law Act. Rather, they are included in the category of property. If orders are required to be made in relation to pets, these will be made as part of the property settlement.

Under Section 79(1) of the Family Law Act, the court can make any order it considers appropriate with respect to the property of the parties, 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 particular party assume ownership of a given asset.

Animals are not regarded as significant assets unless they have a substantial monetary value (such as a racehorse or pedigree dog) or are income-generating (such as cattle). Although a family pet such as a dog or cat may be of tremendous emotional significance to parties, the court will not regard such an animal as an important part of a settlement and will frown upon a pet being included as an asset in a settlement. A settlement may however be adjusted in a case where one party has incurred significant costs in caring for an animal or to take into consideration future costs and maintenance of the pet.

How to decide who gets the dog

Given the reluctance of courts to determine pet ownership, parties are encouraged to come to an agreement about where the pet lives after separation. This can be done through direct negotiation, via lawyers or as part of Family Dispute Resolution. Applicants for property settlements or parenting orders are generally required to undergo Family Dispute Resolution (FDR) prior to filing their application in any event as it is considered preferable for parties to sort out the dispute themselves wherever possible. This requirement will only be waived in circumstances where mediation is not appropriate, such as where there has been serious domestic violence (Family Law Act, Section 60I).

If parties cannot reach an agreement about who gets the dog or other pets, and the pets must be included in the property settlement, the court will consider the following factors:

• Which party has a suitable place for the pet to live?
• Who was the main caregiver? Who walked, fed, bathed and took the dog to the vet?
• Was the pet registered? If so, in whose name?
• Who paid for the animal?

It is important to remember that if you include a pet in a property settlement, it will be treated as an asset and the court can make any order it sees fit for dealing with it. This includes ordering it to be sold, as is the case with a house or a car.

In a case where parties have children, the court may order that the pet accompany the children from the residence of one parent to the other. Alternately, an order may be made for the pet to reside with the parent who does not have primary care of the children, to alleviate that parent’s stress and loneliness.

Australian courts do not have regard to the best interests of the animal when determining ownership of a pet.

Should the law be changed?

Debates are raging in many countries as to the precise legal status that animals should have.  Animal rights advocates argue that the treatment of animals as property is inappropriate given they are sentient beings capable of experiencing complex emotions. These voices also claim that the importance domestic animals have to their families is inconsistent with them being treated as ‘chattels’ (property) at law.

In some jurisdictions, including the US and Israel, courts have incorporated the ‘best interests’ approach used in parenting matters to some degree when deciding the fates of family pets. Switzerland has gone so far as to amend its Civil Code specifically to deal with the issue of pet ownership. Courts in Israel and in some parts of the US have sometimes awarded custody of an animal to one party and visitation rights to the other. However, US courts have done this without any acknowledgement that the test being applied is ‘best interests of the animal’.

In Australia courts have been consistently opposed to applying a ‘best interests’ principle to animals despite occasional calls for them to do so.