29 Apr 2015Who gets the beloved family pet in a divorce can be a very messy affair. While some separating couples can sit down and reasonably discuss the division of household items and money, when it comes to the dog, cat, horse, snake, hamster, goldfish, bunny or budgie that shared their lives, things can get ugly.
In Australia the Family Law Court can’t grant a party the custody of pets. Domestic animals – be they much loved dogs, cats or ferrets – are considered in law to be personal property just like furniture or a car.
However courts, in some circumstances, can take into account the emotional attachment people can have for their pets, and the stress that a separation might have on a dog and (perhaps) a cat. Section 79 of the Family Law Act does allow the court broad discretion to exercise jurisdiction to assign interests in property between the parties. In theory that can include pets, but courts don’t usually like to decide on pets.
Ruth Whisker, a solicitor at Stacks Law Firm, says that’s why counselors and family law lawyers recommend to separating couples that it is much better that they decide between themselves early on who gets the pet – leave it too late and and can turn what would otherwise be amicable into a nasty separation.
In some disputes one person has upped the monetary settlement paid to the other in exchange for custody of the pet. In others couples are signing formal agreements to share the pet, such as one week at his place then one week at hers. Some negotiate visitation rights.
If it comes to the crunch a court could decide the pet, like any other asset, goes to the person who paid for it, and who has a need for the asset in the future. This isn’t necessarily the one who is closest to the pet. Some lawyers even suggest ‘pet pre-nups’. Mediators have been known to let the dog decide which owner it will live with. The separated couple at opposite ends of a field call the dog – the one the dog runs to gets to keep it.
In the United States there is a move to provide legal protection for pets in divorce. Half the American States have brought in laws allowing courts to award protective orders and temporary custody of pets and animals caught up in bitter divorces based on what’s best for the animal, not just the human. That sort of a law for animals doesn’t exist in Australia, but it’s likely that legal debate is coming to Australia.
For more information, please see In a breakup, who gets the dog?
