Pets – are they family or assets?

13 JUL 2020

 

Whether they be four-legged, have fins or possess the ability to fly, pets of all shapes and sizes are a great addition to any family. Many couples often buy pets jointly throughout their relationship for companionship and to build their family unit. Unfortunately, not all relationships last which means that pets acquired during the course of the relationship may be left in an ambiguous situation in relation to their ownership and care. Understandably, negotiating how a pet may share their time, if any, with each party may become quite tense, especially where each party develops a deep emotional connection with their furry or scaly friends. So, how do the Courts and family lawyers approach dealing with disputes concerning pets?

Strictly speaking, the Family Law Act does not have express provisions which deal directly with pets. Instead, pets have come to be treated as items of property, much like vehicles or furniture. This classification allows the Courts to make Orders with respect to pets under section 79 of the Act. With respect to property settlements however, the animals are not deemed to be significant assets unless they are income generating (such as livestock) or are of a special class of animal (for example, competitive show or racing animals). As a result, the Courts are generally hesitant to include animals in a financial settlement where the animal does not fit one of the classes described above.

In 2012 Judge Harman made the comment in an article entitled ‘Feathers fly as pets dragged into custody rows’ that if pets ‘are purely companion animals they are really personal property – like photos and CDs’. This classification does not assist parties who wish to include their domestic animals in their property settlement or final orders. While there has been little recognition of companion animals in family law proceedings, Australian academics and lawyers have discussed proposed changes to the Family Law Act to reflect approaches which have been adopted in the United States which could see that the Courts consider the best interests of the pet. These discussions circle around applying similar criteria of the “best interests of the child” to pets, however this idea has not yet gained weight in the Family Law Courts. As a result, there currently remains little to no avenue for parties to formalise or seek care arrangements for their pets through the Family Law Courts.

It is important to note that there are a great number of parties whose circumstances do not fit those treated under the Family Law Act as they are not married nor have been in a relationship long enough to be considered as a de facto couple. Where issues arise when discussing ownership or care arrangements of pets, these types of couples may benefit from engaging in alternative dispute resolution with a qualified mediator to work towards an amicable arrangement which allows both parties to benefit from the comfort of their pet.

Are you having issues dealing with your family law matter? Feel free to call our office on (02) 4626 5077 to speak with one of our friendly family lawyers who are always happy to assist with guiding you in the right direction.

The contents of this publication are for reference purposes only. This publication does not constitute legal advice and should not be relied upon as legal advice. Specific legal advice should always be sought separately before taking any action based on this publication.

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