According to data released by the RSPCA, Australian’s collectively have over 29 million pets and we have one of the highest pet ownership rates in the world – approximately 61% of households in Australia own pets, with dogs being the most common (40%), followed by cats (27%).
So, how are pets treated in the context of family law and separation?
Sadly, divorce and separation does not only affect those individuals whose relationship is breaking down – children, extended family and, regrettably, the beloved family pet can all be caught in the crosshairs.
The Family Law Act
Generally, family law disputes can be categorised in one of two ways – either as parenting disputes or property settlement. Under the Family Law Act, the federal legislation governing all family law disputes in Australia (except in WA), pets are classified as personal property and dealt with in accordance with property settlement principles.
In light of the Family Law Act’s exclusion of any specific provision relating to pets, the Courts have shown a general reluctance in making Orders with respect to them, and have instead encouraged separating couples to make their own arrangements for their beloved pooch or feline friend. Ultimately, however, if separating couples really cannot reach an agreement with respect to their pets, then the Court can, in considering an overall property settlement, make Orders with respect to the ownership of a pet.
This was qualified in a recent 2020 family law decision, where the Judge found they had no jurisdictional basis to make Orders for the shared care of a pet, but rather, could only make Orders for the allocation of ownership.
There are a number of subjective factual elements which the Court will take into account when considering the allocation of property (including your pet) and it will depend on the individual circumstances of the matter.
If you need further advice on this issue or any other family law related matter, we are here when you need us.
