What happens to pets in family law proceedings? – Family and Matrimonial

Over the last two years of the COVID-19 pandemic, there has been
a substantial increase in pet ownership in Australia, with 69% of
households now owning a pet, up from 61% two years ago
¹. At the same time, divorce and separation rates have
been on the rise ². It comes as no surprise then, that
many disputes have come before the Courts as to who will maintain
and care for a pet post-separation and who is in fact the legal
owner of the pet. In this article, we explore how pets are treated
by the Courts in family law proceedings and what you need to know
as a pet owner.

How are pets classified by the Courts in family law
proceedings?

If parties involved in a divorce or separation are not able to
amicably settle their family law matter, the Court will treat pets
as part of the property settlement. The pets are treated as
“property” as opposed to living beings in this respect,
and as such are treated in this manner when deciding who will take
responsibility for the pet.

The Court will generally not take into account the financial
value of the pet, with the exception being income producing animals
such as racehorses, cattle and sheep.

However, if the pet was for the benefit of children to the
marriage, then the pet will usually live with the children, and
will follow them between households, with expenses shared equally
between both parties. If the pet was not purchased for the benefit
of the children, or if there are no children to the relationship,
then the Court will identify who is the legal owner of the pet, and
why the pet was purchased. In order to understand how pets are
treated in family law matters, we look at the case of Downey
and Beale [2017].

The case of Downey & Beale [2017]

In this case ³, the husband and wife reached an
agreement on every aspect of their family law matter, except where
the family dog was concerned and who was the rightful owner of the
pet. The facts of the case are as follows:

• The wife declared herself as the rightful and legal owner of
  the pet, as per s78 of the Family Law Act 1975 where
  parties to a marriage declare that they have a right to an item of
  property.




• The Court noted that the husband was registered to the dog, so
  by a legal right it was his. However, the Court also identified
  that the registration had occurred after the family law matter had
  begun. Resulting from this discovery, the Court did not accept the
  husband’s submission that he was the rightful owner on this
  ground.




• Another issue arose, as the dog was purchased by the husband
  using his own money as a gift to the wife in 2011 when the parties
  were dating, but not living together. The Court noted that during
  this period of dating, the dog stayed with the wife and her parents
  in their house. This was relevant, as it further displayed that the
  pet was a gift to the wife.




• Following the separation of the parties, the dog kept living
  with the wife.

The decision

In weighing up the facts of the case, the Court ultimately ruled
in favour of the wife, with his Honour making the finding that:
“ultimately, on the evidence that is available and
applying the rules of evidence thereto, I accept that the wife was
the owner of the dog… irrespective of who paid for the creature,
it was purchased for her as a gift”. As such, the
purchase of the property as a gift demonstrates how the Court
identifies pets as part of the property settlement, irrespective of the best
interests of the pet(s).

Downey‘s impact on family law proceedings
identifies the way in which the Court perceives pets not as loved
members of the family, but rather as property which can be gifted,
sold or transferred.

Will pets always be treated as property in family law
matters?

There has been a shift in recent months in family law cases
internationally regarding the status of a family pet. New laws came
into effect on 5 January 2022 in Spain
⁴ where pets are no longer property in the context of
family law proceedings, but instead are recognised as ‘sentient
beings’ and treated as a legal family member.

Spanish Courts no longer identify pets being an object, but
rather they take into account the best interests of the pet over
any legal ownership. Similar decisions have been made in both
France and Portugal, which have been at the forefront of animal
welfare matters. As such, with the new decision, pets can no longer
be abandoned, seized, or mortgaged in family law proceedings. This
echoes the same sentiment for children whereas the Court will
look into what the ‘best interests of the pet are’.

In Australia, pets are still treated as property in family law
proceedings, however the increased awareness towards animal welfare
and what is in the best interests of the animal and the shift
towards the rights of animals in family law cases
internationally, could see this change in the future.

How to best protect your pets in the event of separation

If you are concerned about what may happen to your pet(s) in the
event of a separation, it is recommended to:

• keep records indicating who paid for the pet at the time of
  purchase;




• keep records (credit card statements, receipts etc.) of any
  expenditures spend on the pet (food, clothing, medicine etc.);




• have the pet listed in your name at your vet (Noting from
  Downey, having it registered in or around your separation
  will not have the desired effect); and/or




• keep records of who pays for the vet bills.

Footnotes

Animal Medicines Australia Report: https://animalmedicinesaustralia.org.au/wp-content/uploads/2021/08/AMAU005-PATP-Report21_v1.4_WEB.pdf

ABS released data on 24 November 2021 taken from samples
during 2020. Marriage and Divorces, Australia https://www.abs.gov.au/statistics/people/people-and-communities/marriages-and-divorces-australia/latest-release

Downey & Beale [2017] FCCA 316

https://perma.cc/KFF4-82XR

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.