Who gets to keep the Family Pets?

When a marriage or de facto relationship ends, the division of assets begins. An increasingly situation Family Lawyers are now being faced with is clients involved in so-called ‘pet custody disputes’, that is, being asked advice as to “who gets to keep the dog?” or “does the cat form part of our ‘property’?” Despite the initial puzzled reaction, if we really think about this, we can see why those ‘pet custody disputes’ are becoming more common.

Some separating couples we see can agree on dividing the “ours” into “yours” and “mine” when it comes to real estate, superannuation, and shares. But for some separating couples, the family pet is a much more emotional ‘asset’. That is particularly so in cases involving often affluent, usually childless couples, who fight for ownership of their pet as they would for a child. We find those clients arguing over “custody” and “time” whether that time be shared equally or split less evenly. It is an emotional and painful battle, especially for those couples who see their animals as substitutes for children.

It is an issue most would never imagine they would find themselves so embroiled in, maybe because they assume they’d be the one keeping the cat or dog, with attitudes like ‘I paid for him, so he’s mine” or “the dog will just stay with the kids and because they live with me then so does the dog”. When there are children involved, the parties often agree the pets should stay or move with the children. Judging what is in the pet’s best interests might also depend on which party has the biggest backyard or more time to care for the animal.

Or maybe it’s because of the very common misconception that many believe the Family Court will make ‘custody arrangements’ for their pets. Unfortunately this is not the case. The Family Law Courts treat pets, regardless of whether or not we believe to be correct, as property. Further, because pets are unlikely to be worth very much (unless they are breeding or racing animals), Judges are unlikely to look favourably on parties who take up Court time arguing about their pets. Indeed, parties must be aware that one of the options open to the Court in property matters is to order that property be sold. A worst case scenario would be that if the parties couldn’t agree on what to do with their pet, the Court ordered it to be sold.

Courts in the US are slowly accepting that pets mean more to some than their price tag. The Family Court of Australia has, so far however, refused to make any “pet parenting” orders, maintaining the position that animals are ‘goods’ or ‘chattels’ thereby making them property.

Many argue this approach is incorrect or insensitive and accuse the Family Law Courts of being inflexible and old fashioned. It is possibly why we are also seeing separating couples now entering into informal “pet parenting” agreements. Under the terms of those informal custody agreements, parties can specify with whom the dog or cat is to live with, how much time they spend with the other party, who does the ‘changeover’, what vet the dog or cat attends all the way to what food is to be provided and which ‘doggie parlour’ they are to attend.

Jean-Marcel Malliat, principal mediator at InterMEDIATE has been quoted as saying “Sometimes they express stronger emotions than they do for their children,” providing an example of a couple that agreed their dogs would remain in the family home with the wife and the husband was allowed to take them for a walk every other weekend.

Unfortunately, pets can be used like bargaining chips in these disputes, just as children sometimes are. For advice in relation to disputes involving your pet, contact the Family Law Team here at Taylor and Scott for timely, efficient and practical advice.

If you would like advice, guidance or assistance in relation to your property arrangements following the breakdown of your marriage or relationship, contact our Family Law Team here at Taylor & Scott Lawyers.

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