Pet custody disputes: Who gets the dog in a divorce?


When it comes to the legal side of separation and divorce, children and property are generally the main priorities. But what about our furry family members?

For many, pets are beloved and important members of the family. When a couple separates, the way the law deals with pets is different from what you might expect.

What the law says about pets and property settlement

pet custody dispute who gets the dog in a divorce

Pets in Australia are considered to be personal property as no specific provisions refer to pets in the Family Law Act. This means, in the eyes of the law, our beloved pets are included as part of a property settlement between the parties, along with other property such as furniture, houses and cars.

Separated couples are encouraged to try to reach their own arrangements in relation to the care of their pets. However, if they can't agree, the court will deal with pets in the same way they deal with other personal property.

What if you can't reach an agreement?

While pets are technically determined to be "property", there will be considerations a court will make which go beyond how it deals with things such as furniture or cars.

If a couple can't agree on the arrangements, the court will attempt to identify who is the primary 'caregiver' of the pet, by considering the following:

1. Who bought and registered the pet;

2. Whether the pet was a gift;

3. The relationship each party has with the pet;

4. Which party is responsible for protecting and caring for the pet;

5. Who trained the pet and took it to the vet; and

6. Who is best practically and financially placed to meet the costs of and care for the pet.

Case in point

In the recent case of Downey v Beale, a wife was granted the right to retain ownership over her pet because she took a more active role in caring and showing affection to the pet, even though the pet was registered in her husband's name.

Avoiding disputes when it comes to your fur babies

To pre-empt any disputes about the future care of your fur baby, it's important to consider the factors above and proactively take steps to make sure that if you separate from your partner down the track, you're seen as the "primary caregiver" of your pet.

Taking these steps early can go a long way to avoid losing a much-loved companion as part of a separation.

If you want to, you can always enter into a financial agreement with your partner early on, to clearly identify what will happen to your pet in the event of separation.

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Josephine Sergi is the head of family law at Kalus Kenny Intelex. She has more than 15 years' experience in family law both as a lawyer and paralegal. Josephine holds a Bachelor of Laws (Honours), Graduate Diploma of Legal Practice and Masters of Applied Law (Family Law). She is a member of the Law Institute of Victoria, the Family Law Section of the Law Council of Australia, Victorian Women Lawyers, the Australian Italian Lawyers Association, and ALTO - Australian-Italian Leaders of Tomorrow. She is also a contributing author of the Australian chapter of the Lexology Private Clients Guide.