Who let the canines out? Resolving pet custody disputes – Household and Matrimonial

To print this article, all you need to do is be registered or log in to Mondaq.com.

Although there is a clear framework under Australian law for deciding which regulations are in the best interests of children after a separation, this does not apply to fur babies. Animals fall under the definition of property and are treated in much the same way as objects such as cars and furniture, despite the emotional ties that exist between people and their pets. This approach is somewhat at odds with animal welfare laws and regulations governing the property of these living beings, so there is an argument that the law in this area could be improved.

Powers of the Court of Justice

The legislation applicable in a dispute over possession or possession of a pet in a post-separation dispute is the Family Law Act 1975 (Cth) for married couples or the Family Court Act 1997 (WA) for de facto Couples.

The Western Australian Family Court (“the Court”) has the power under the provisions of both laws to make orders amending the property interests of the parties, declarations of who owns property, orders to protect property, and orders requiring the sale of property .

The laws define property as: “property to which these parties belong or to which that party is entitled, whether owned or reversed”.

As stated in Gaynor & Tseh [2018] FamCA 164: “The Family Law Act 1975 (Cth) does not cover pets … As difficult as it is for the applicant and perhaps other dog lovers to accept, the law covers changes in property interests here.”

In establishing a property comparison, the Court is obliged to make such orders that will definitively determine the financial relations between the parties and avoid further proceedings. Therefore, in disputes over a pet, it is unlikely that the court will issue a definitive order on the continued existence of common property or possession, or that both parties will maintain a lasting relationship with the pet, as is normally the case with a child.

Value of Pets

When deciding on a property settlement, one of the first steps is to determine the current market value of the property available for division. While pets are often invaluable to their owners, pets usually only have a nominal market value. This can be different for breeding animals or farm animals that can generate an income. However, expert evidence may be required to prove their worth.

In Downey & Beale [2017] FCCA 316 stated: “Neither party tries to divide any value [the dog] and appropriately. They are not arguing that its value is monetary. Its worth is their love and affection for the creature as they put it “.

In Benford & Benford [2012] FMCAfam 8 had the court set a baseball field value for nine pedigree dogs with no expert evidence available. The court stated: “Fair market value is normally defined as the highest price that can be achieved in an open and unrestricted market between informed and prudent parties who trade on market terms and without any obligation to buy or sell.” The court found that it could order the dogs to be sold to confirm their value, but ruled that it is preferable for the woman to keep the dogs at their estimated value of $ 3,000 each.

Relevant considerations

In deciding which party should be able to keep a pet, the following factors were considered by Australian courts. However, this is a discretionary decision that must be made in the circumstances of the individual case:

  1. Who paid to buy the animal? In Downey & Beale, however, the court found that “the payment of a fee does not in itself determine the property or the order, if any, that that court might make in adjusting property interests”. In this case, the husband bought the dog, but the wife said this was a birthday present for her and she was eventually allowed to keep the dog.
  2. When the animal is registered and in whose name. At Downey & Beale, however, the dog was not registered until the woman registered the dog in her name after the separation, which was described as “selfish”.
  3. Who owned the animal? In Delong & Rouse [2019] FCCA 1498 found it preferable for the husband to keep the dog as he had owned and cared for the dog for the two years since their separation.
  4. Who has made major financial and non-financial contributions to the conservation of the animal, including:
    1. Who paid for groceries, vet bills, insurance, grooming and supplies? and
    2. Who fed, trained and cleaned up after the animal and brought the animal to classes or appointments.

At Downey & Beale, the woman was able to produce a bundle of bank statements and documents showing that she had paid for such expenses and list her as the “owner” of the dog.

  1. Whether the animal should stay with children of the parties. In an unreported case from 2017, it was concluded that “the children are likely to be in the applicant’s care, at least for the short to medium term, and should have the joy of looking after the dog”. A similar decision was made in Jarvis & Weston [2007] FamCA 1339 and Langley & Bramble [2008] FamCA 437 that the family dog ​​should stay with the children.
  2. Whether the animal is a service animal that a party will have to rely on in the future was mentioned in passing in Downey & Beale.
  3. Whether the parties have adequate accommodation. In Poulos & Poulos [2016] FamCA 800, the court found it was appropriate for the woman to request additional alimony for the spouses so that she could get pet-friendly accommodation and take the dog with her. The court said, “It is perfectly reasonable that the woman would want to take her dog to her new accommodation for companionship. The woman is not employed, she is involved in the stress of a marital breakdown that has resulted in litigation and she does not become the companionship the daughter of the parties who will continue to live in the former marriage home In circumstances where the wife agrees to the husband who continues to live in the former marriage home, it would be unreasonable to expect her to break her ten year bond with her dog. “

Hold out of court

While the Court of Justice has the power to rule on pets, it would be more time and cost efficient to negotiate or mediate such disputes.

In Gaynor & Tseh [2018] FamCA 164 and Farrow & Farrow (No. 2) [2020] In FamCA 794, the courts refused to temporarily issue an order to change the ownership or possession of dogs so that the dogs would remain where they were until the parties could reach an agreement or trial for one final ownership settlement took place.

Delong & Rouse commented, “The court is unhappy to be able to make a decision about other people’s pets. It is somewhat alarming that the parties have failed to resolve this matter and have spent far more than that the cost of a new dog for preparing affidavits and discussing the matter. “

The other benefit of a negotiated agreement is that there is more room for creative solutions, e.g. B. the division of ownership of the pet on a schedule.

If an agreement is reached on ownership or possession of a pet, it is still possible to formalize it through a Form 11 informed consent application or a binding financial agreement so that the agreement is enforceable.

It should be noted, however, that deadlines for initiating property settlement proceedings apply, including in relation to a pet. The period is two years from the date of separation for de facto couples and one year from the date of divorce for married couples.


The law in some overseas jurisdictions was changed to better reflect that man’s best friends should not be treated just as part of the furniture. For example, in recent years Alaska, Illinois, and California have introduced laws that require courts to consider an animal’s welfare in the event of a divorce. It remains to be seen whether the law will change in Australia, but it is up to the courts to work with the framework we have in the meantime.

The content of this article is intended to provide general guidance on the subject. A professional should be obtained about your particular circumstances.

Comments are closed.