What Happens with the Custody of Family Pets in Separation?

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Pet peeves: pets are considered a man’s best friend, who will always stick by your side.

But what happens if the law tries to separate you?

It may seem easy for some couples to split the ownership of simple properties, such as washing machines and fridges. However, many pet owners are attached to their pets and find it difficult to let them go.

Due to their beloved status within a household and the increased popularity of pet ownership in Australia, today about 61% of Australian households have at least one pet. It comes as no surprise then that in the event of a separation or divorce, pet custody can become a major issue.

Contact one of our friendly and experienced Perth family lawyers if you are in a situation where pet ownership is a contentious matter, or you want to be certain that your pet will remain with you after you have separated.

 

How Pets are Dealt with in Western Australia

 

If parties in a separation or divorce are unable to reach an amicable agreement, the court will consider the pet as part of the property settlement. When determining who will take care of the pet, pets are treated as property and not as living beings.

It is a common misconception that pets are an ‘asset’. However, the Court will generally not consider the pet’s financial value, except for income-producing animals, such as sheep or cattle.

If the pet is being purchased for the benefit of the children, it will be accompanied by the children and will travel with them between homes. Expenses will be shared equally. If the pet was not purchased to benefit the children or there are no children in the relationship, the Court will establish who is the legal pet owner and explain why.

           

Factors the Court Will Take into Consideration

 

The Family Court will evaluate several factors in order to inform a decision regarding a property settlement proceeding that involves family pets. These factors include:

  • Which party bought the animal?
  • Which party is the registered animal owner?
  • Which party can provide the best accommodations for the animal’s needs?
  • Which party contributed more to the care and maintenance costs of the animal? Who has paid for the animal’s food, grooming, and veterinary costs?
  • Which party made the greatest non-financial contribution to the animal’s care and maintenance? Who has taken the animal for walks or fed it?

 

An Example of a Pet Custody Dispute in Australia

The case of Downey & Beale FCC 316 2017 gives us a better understanding of how the Act applies to pets. In this instance, the husband claimed that he purchased the dog during the marriage. The wife claimed her husband bought her the dog as a present and that the dog had lived with her parents since the purchase. The wife presented evidence that she paid for the dog’s food and toys as well as for any vaccinations and operations.

After receiving the wife’s affidavit claiming ownership, the husband registered ownership. Although the registration was in the name of the husband, the Court ruled in the wife’s favour because of her overwhelming contribution to its daily care and payment of most of its financial costs. The Court eventually made an order that the husband transfer the registration to the wife.

 

Different Options for Resolving and Formalising Custody Issues Regarding Your Pet

 

If pets are involved, there are extra considerations in navigating the family legal process. There are many options available to you, and we outline some of them below:

 

Negotiate Outside of Court

The Family Court of Western Australia can make decisions regarding pets. Many couples who are going through separation find that it is easier to reach a custody agreement outside of court. A timetable that allows for equal time could be arranged if neither party is willing to give up their pet. The court might only make a ruling if there are serious safety concerns about the pet.

If you cannot negotiate directly with each other, you can include your pet arrangements in your Perth family mediation. This will enable both of you to decide who the pet will live with and for how long, as well as who will pay the expenses. However, this agreement is not legal; instead, it is simply an indication of your intentions. 

 

Consent Orders

Consent orders are written agreements concerning parenting, financial, and property provisions. They allow parties to formalise agreements and make them legally binding.

If they can reach an agreement on pet custody, they could apply for a consent order to formalise the arrangement.

Before you submit your application, make sure to review the eligibility requirements. This is outlined in Section 44 of the Family Law Act.

A consent order must be filed for de facto spouses at least two years after the breakdown of the relationship.

For married couples, it should not be filed less than one year after the divorce.

 

Make an Application for a Property Order

You can apply for property orders that include your pet if you have exhausted all avenues of negotiation and Perth family mediation, and your ex-spouse is not willing to reach consent orders. You can find out more about the court process by contacting our team.

 

Puppy Prenup

 

If a prenup (or binding financial agreement, as it’s known in Australia) has been signed before you get married, legal proceedings regarding your pet’s ownership could be avoided.

A prenup is a legal agreement that ensures that the pet’s sole custody remains in the event of separation, provided that both parties have obtained independent legal advice prior to signing the agreement.

 

Consult with an Expert Perth Family Lawyer

 

Our years of experience as Perth divorce lawyers allow us to make each client’s family legal experience as pleasant as possible.

Contact one of our friendly Perth family lawyers at Burra-Robinson Family Lawyers if you have any difficulty in negotiating a property settlement. This includes who will be the owner of the pet(s) or other family law issues.

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