25 May 2022When relationships break down, there can be emotional fights over who gets the dog or some other domestic pet the couple shared.
With pedigree dogs costing more than $4,000 these days, there can be more than just emotion at stake.
While most people love and adore their companion animals and see them as an important part of their family, under New South Wales law, a family pet is simply regarded as property, just like a sofa, bike or toaster.
Regardless of the type of animal – it could be a highly trained kelpie, guard dog, loyal Labrador, pugilistic pug or cuddly cat – they all come under the NSW Companion Animals Act 1998.
Family pets treated as part of property pool in law
Australian family law does not acknowledge the role of pets as sentient beings in relationship breakdowns.
The NSW Companion Animals Act 1998 classifies all companion animals as property, and pets are treated as part of the property pool.
This means separating couples must decide who gets the animal companion they once shared, just as they will have to decide who gets the car or the cutlery.
Of course, it is best for couples to sort this out between themselves, without resorting to legal challenges, but sometimes the question of who gets the dog ends in court.
Custody dispute of Kobe the Pomeranian
In 2021, a case to determine who gets the dog after the couple splits up was decided in the Melbourne Magistrate’s Court.
At stake in the dispute between Mr Chow and Ms Chang was the fate of Kobe, the cute Pomeranian. Both claimed to be the rightful owner of the pup which lived with them for a year before the breakup.
Ms Chang took Kobe with her when she left. Mr Chow filed a statement of claim in court, arguing he was owner because he paid $4,300 for the dog.
Ms Chang told the court Mr Chow had given her the dog as a gift, that initially he didn’t even want a dog. She found the breeder in NSW, took two weeks of leave to help the dog settle in, chose its name, and registered and chipped Kobe in her name as owner.
Text messages produced as evidence
She produced text messages between the couple as evidence to show Mr Chow was a reluctant dog owner. When she asked for a puppy for her birthday he replied, “no pets baby”.
When she sent a picture of a cute puppy he replied, “Daddy is busy making money – no time for a doggy like this.”
Eventually he agreed to buy her a dog texting: “Can you stop being a pain in the bum bum [sic] and get us a god damn cutie dog.”
Who paid for the dog?
When Mr Chow’s lawyers asked her why she didn’t buy the dog herself, she replied she couldn’t afford it and Mr Chow earned four times what she did.
Mr Chow argued he provided the $4,300 to buy the dog, paid vet bills and taught it to perform tricks. He became fond of little Kobe and wanted the fluffy pup back, as well as damages for loss of enjoyment of Kobe for 12 months.
He argued Ms Chang had the “right to use and enjoy the dog” while they were in a relationship, but that ended when they broke up.
Rather than resorting to Solomon’s wisdom and threatening to cut Kobe in half, Magistrate Meghan Hoare ruled Ms Chang was the owner of Kobe, as the dog had been a gift from Mr Chow.
Mr Chow lost Kobe and he also had to pay Ms Chang’s legal costs.
Working out pet custody during a separation
Pets are an important part of our lives, and the potential to lose them through a separation or relationship breakdown can be heartbreaking.
It is preferable to try to work out a settlement or satisfactory outcome regarding custody of the pet, before a fight over who gets the dog ends up in court.
