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Property Matters

Who gets the dog?

Who keeps the dog after separation?

Pets often form an integral part of the family unit and significant time and money is spent on them. Adults and children alike often form strong emotional attachments to their pets.

It may therefore surprise you to hear that the Australian Family Courts regard pets simply as chattels or property. This means that if a couple separates and cannot agree about who gets to keep their pet, the Court must deal with the issue as if it were dealing with a house, car or piece of furniture.

If you and your former partner cannot agree about who gets to keep the family pets after separation, you may wish to try to negotiate directly with your former partner to attempt to resolve the issue. Otherwise, you can attend mediation with a registered Family Dispute Resolution Practitioner for assistance from an independent third party. If you still cannot agree, you may need to ask the Court to make the decision for you.

Binding Financial Agreements

One way to avoid a disagreement about pet ownership following a separation is to enter into a Binding Financial Agreement with your partner, either before, during or after your relationship comes to an end. A Binding Financial Agreement lists all of the assets owned jointly and separately by the parties and sets out how the assets will be divided in the event of a separation.

If you have not entered into a Binding Financial Agreement and want to ensure that the pets stay with you, it might help if you register the pet in your name and keep evidence of who purchased the pet and who paid for the expenses associated with the pet such as veterinary visits, pet insurance, training, food and grooming.

Consent Orders

If you have not entered into a Binding Financial Agreement but have managed to agree upon a property settlement with your former partner, you may choose to finalise the settlement by filing Consent Orders with the Family Court. Like Binding Financial Agreements, Consent Orders deal with how assets are to be divided between parties following a separation, but they are filed with and sealed by the Family Court. To make sure there is no misunderstanding about pet ownership, Consent Orders can stipulate which party is to keep pets. This is particularly important where the person keeping the pets is not the registered owner for local council purposes. In such an event, there may need to be provision requiring one party to transfer pet ownership to the other party.

Proceedings in the Federal Circuit Court or Family Court

Factors which the Court will be likely to consider if it is required to determine the issue of pet ownership include the following:

  1. Which party the pet lived with prior to, during and following the relationship;
  2. Which party has been responsible for the financial cost of the pet, including veterinary visits, pet insurance, training, food and grooming;
  3. In which party’s name the pet has been registered and which party purchased the pet; and
  4. Which party has suitable accommodation to house and provide for the pet.

Case Study: Downey and Beale

In the case of Downey and Beale[1], the Husband and Wife had agreed on all aspects of their property settlement except for who was to keep the pet dog. The Husband asserted that he had purchased the dog and that it was registered in his name. On the other hand, the Wife asserted that the Husband purchased the dog for her as a gift, that the dog had lived with her at her parent’s house since it was purchased, and that she had met all of the costs associated with it.

The Court held that it needed to follow the process it would normally undertake when determining any other property dispute, which is to identify the assets available for division, to determine each parties’ contributions to the assets, to identify the future needs of the parties and to ensure that any decision made is ‘just and equitable’.

In Downey and Beale, although the Husband had paid for the dog and registered it in his name, the Court decided in favour of the Wife as she had made overwhelming contributions to its daily care, had arranged and attended veterinary appointments and had met the majority of the financial costs associated with the dog. The Court did consider it appropriate to assess the future needs of the parties when determining who would keep the dog (however it is conceivable that the Court might do so if the pet involved was a disability support dog).

There have also been cases where parties with children have entered shared care parenting arrangements and the Court has then ordered that the pet moves with the children from the house of one parent to the house of the other parent.

[1] Downey and Beale [2017] FCCA 316 (2 February 2017)

The Next Step

If you are going through a separation, you might find yourself in a situation where pet ownership has become a contentious issue. If so, it is important that you obtain legal advice. Our lawyers at Aston Legal Group can be contacted on 8391 8411 to assist.

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