Who Gets the Pet can be a Big Issue in Divorce Cases
When couples separate it’s often hard enough for them to decide who is getting the television, the couch or even the children. And when it’s the family pet, it’s by no means less complicated, as the head of RMB Lawyers’ Family Law Division CLAIRE OSBORNE explains:
Under the Family Law Act, pets are considered in the same way as any other household item or personal property that cannot be divided and needs to be assigned to one spouse.
In effect, Courts have limited capacity to deal with pets’ living arrangements post separation.
Separating couples may make formal or informal agreements to determine who retains the family pet, whether the pet spends time between two households and who is responsible for its expenses.
However the difficulty with the sharing agreements (even if it is capable of enforcement in the form of consent orders or a binding financial agreement) is that when one party moves away (making it impracticable to continue) or when one party decides to no longer adhere to the agreement, the costs and the time delays associated with making a Court application for enforcement mean that many people just wouldn’t take the action.
As a result some pet owners find themselves mourning both the loss of a relationship and a family pet, following separation from their spouse.
Couples not able to make arrangements or agreements for their pets themselves can request that a Court make an order about where and with whom the animal will live.
In most cases the Court will make an Order for the pet to be retained by one party, although there are times that the Court orders it go between two residences. For example if there is evidence that the family pet will provide children with stability when going between their parents’ homes, a Court may make an order for the pet to follow the children.
Some of the factors the Court considers in relation to pets are: who it has resided with prior to, during and following separation, who has been responsible for its expenses and whose name the pet is registered in.
Usually at least one or both of the owners have a strong emotional attachment to a family pet, so putting it in the same category as household items is extremely difficult for them to accept. Accordingly many pet lovers are dissatisfied with the law as it stands in Australia.