March 23, 2017


When a couple separates, the issue of who keeps the pets can be difficult and heart-wrenching. After all, pets are precious. Rover isn’t just a dog. He’s a best friend, constant companion, exercise buddy and even a confidante.  There’s no way to put a dollar value on his worth.

So how is this issue dealt with in the family law system?

Pets are property

Even though many pet owners think of them as family members, pets are treated as property in family law cases. For parties who can’t agree on who gets the pets, the Family Court will consider them as an item of personal property, much like a piece or jewellery, a share portfolio or an item of furniture.

This doesn’t seem logical, given that much has been written about the enormous psychological benefits of pet ownership. And we all know people who love their pets as much as they love their own children.

In fact, the American State of Alaska has recently passed an amendment to its divorce statutes, requiring judges to take into account the well-being of a pet in any divorce proceedings. Judges can also order that divorcing parties share the custody of their pets. For the first time in the US, a court can award custody based on what is best for the pet.

This reflects the increasing demand on US courts to make decisions about pet custody, visitation and monetary support, much like those family law decisions that are made for children.

As one commentator said, “… rarely do people want to be “bought out” of their share of Fido, as might happen with a car or a house …”. This, in a nutshell, is a good reason why pets should be treated more like children than property when it comes to separation and divorce.

Australian laws

In Australian family law, because pets are treated as property, the Family Court won’t make decisions about pet visitation, custody or financial support. If the parties can’t agree on who gets the pet, the Family Court will apply the usual four stage test to resolve the issue.

First, the pet will become part of the pool of assets. The Court identifies all of the assets and debts belonging to the parties as at the date of separation. If you believe the pet is of significant value (for example if it is a pure breed or if it is a racing or show animal), it may need to be valued by an expert.

Next, the Court will look at the parties’ contributions. For example, who bought the pet? Did one party own the pet before the relationship? Who paid the expenses such as vet bills, insurance and food? The Court will also look at non-financial contributions, for example who usually fed or exercised the pet?

The Court will also consider who has had possession of the pet since separation – this will be a key determining factor in the Court’s decision. The Court will also consider who made what financial contributions to the care of the pet during this time.

Then the Court will consider the future needs of the parties and whether one party has a particular need for the pet. It may be the pet is a Seeing Eye dog for one of the parties, or that doctors have said that the pet is necessary for one party’s psychological well-being.

Lastly, the Court will consider any proposed orders for who gets the pet. The Court will then work out whether those proposed family law orders are fair and reasonable.

Future laws

It hardly seems right that a much-loved pet is suddenly relegated to property status when its owners’ relationship ends. That’s why Australian family law may one day follow the Alaskan example and pass laws that deal with pet custody, visitation and financial support.

Some Australian commentators have said that the law should find some middle ground between the two positions. This might include an acknowledgment that whilst pets are not children, they have similar welfare requirements and the law should reflect their best interests by:

  • Protecting them from physical and psychological harm.
  • Making sure they are adequately and properly cared for.
  • Making sure their owners fulfil their duties to care for their pets, including tending to their welfare and development.

So even though the proposals don’t deal with custody arrangements, they would be a big step forward in recognising the rights and social value of pets.

What does it mean?

If you are considering separating from your partner, now is the time to be thinking about what will happen to your pet. Often, the person who keeps the pet during separation will be the person who ends up keeping the pet permanently. So if you want to keep your pet, consider your accommodation requirements if you move (for example, many rental properties don’t allow pets) and how you may be able to keep the pet in your custody when you separate.

If you have agreed with your former partner about custody, visitation and financial support, you should see a family lawyer as soon as possible to have an agreement drawn up and signed by both parties. This will protect you if anything ever goes wrong and it is also a useful record of exactly what you and your former spouse consented to.

If you can’t agree, you need to discuss the matter with an experienced family lawyer to work out what to do next. Your lawyer will need to consider how the Court will apply the four stage test, and whether anything can be done to improve your chances of keeping your pet.

Family law cases are never easy, but when pets are involved, the stress can be overwhelming. In the future, Australian laws may fall into line with social expectations, but in the meantime, your chances of being able to keep your pet will probably improve if you engage a lawyer.

Websters Lawyers has a team of outstanding family lawyers who are highly experienced in property cases. Contact us today for a free first interview. Because the sooner you act, often the better off you’ll be.