Your Pet as Property: The Property Pet Predicament

Your Pet as Property: The Property Pet Predicament

Your Pet as Property: The Property Pet Predicament 1024 683 Dorter

With the increase of pet adoption and purchases during times of COVID-19, you may want to know how the Family Court would currently treat our furry friends in a family law dispute, should it eventuate.

While most pet-lovers easily consider their pets and other furry-friends honorary family members and life-time companions, figuring out who keeps the fur baby can often be distressing as pet “custody” disputes remain unclear in the realm of Family Law. We understand that separating pets from children and their owners can be stressful and difficult, adding another layer of tension during an already difficult time and, as a result, it is important to know how the Court deals with pet custody disputes.

Pets are Property

There is currently little to no legislation to assist with navigating pet custody. As a result, the Courts often approach pets in conjunction with personal property or other assets under s 79(1) of the Family Law Act, applying principles that would be applied to other personal assets including furniture or clothing.

The Court has a duty to finalise all financial relationships between the parties and to ensure that their financial ties are severed with finality. As pets are considered property, this means the Court in the Family Court jurisdiction is unlikely to grant orders for shared ‘pet custody’ so to speak.

Similar to treating any other asset of a property dispute, the Court will consider a number of factors to determine who will be able to retain their pet companion, including:

  1. Who the pet resided with prior to, during and following separation;
  2. The relationship each of the parties have with the pet;
  3. Who has been responsible for the financial expenses associated with owning the pet;
  4. Who has the most suitable place for the pet to live; and
  5. Who the pet is registered to.

Every matter differs on a case by case basis and the weight on each factor will also depend on the circumstances of the case.

This is often unsatisfactory and fails to recognise the emotional relationship built with your companion. As a result, alternative options may be required to determine the care arrangements for your companion. There are a number of different options that may assist you when dealing with separation when it comes to you beloved family pets

Negotiation

As with any other parent, it is always best to resolve any differences by negotiating the living arrangements between the parents.  We understand that negotiation can be hard during difficult times, such as separation and as a result, we are here to help. This may be done by assisting you in articulating suitable arrangements through an exchanging of letters or face-to-face, during mediation, to determine what arrangements would be best suited for each party.

It is important to note however that agreements reached by negotiation are not legally binding and can be subject to change. Although the benefit is flexibility, agreements are not enforceable under the Family Law Act unless they are considered Binding Financial Agreements, or are Orders of the Court.

A “Pre-Nup” or in this case a “Pet-Nup”

One alternative to formalise pet custody arrangements is in the form of a Binding Financial Agreements (BFA). A BFA is an enforceable contract and you can include clauses detailing pet care arrangements in the event of separation.  BFAs prior to marriage (otherwise known as pre-nuptial agreements) refer to agreements entered into between the parties which establish how financial affairs and property will be addressed in the event of a relationship breakdown. You can also enter into a BFA after separation.

BFA’s do need to satisfy a number of legal requirements to be binding. However, it may be an effective way of amicably laying out custody arrangements of your beloved pet without requiring the intervention of the Court.

Find more about Binding Financial Agreements here.

Consent Orders

Much like Negotiations, Consent Orders are made with the consent between the parties. Consent Orders refers to a written agreement that is approved by the Court and may encompass a range of issues including management of your fur-baby.

The advantage of these Orders are that they usually legally binding and therefore enforceable upon both parties, ensuring that any agreement that is reached will continue in accordance with the Orders of the Court. However, in the context of pet custody, there is much debate whether Orders made for ‘spend time’ arrangements or ‘shared’ care for your pets are enforceable Orders. This is because pets are considered ‘property’ and the Court has a duty to finalise and determine all financial relationships between the parties.

However, there has been circumstances where the Court was prepared to make Orders for shared ‘custody’ of the pets ordering the pet to remain with children and to travel between residences on the same schedule as the children.

Dorter Family Lawyers and Mediators offer specialist family law advice in McMahons Point on Sydney’s Lower North Shore, and are available to assist you with any questions you may have about your pet predicament.  Please get in touch with us on (02) 9929 8840 or mail@dorterfamilylawyers.com.

Julie Cheung

Associate

Rebekah Dorter

Principal

This post is an overview only and should not be considered as legal advice.  If there are any matters that you would like us to advise you on, then please contact us.