FAMILY LAW: “I’M KEEPING THE PETS!” – PART II

May 9, 2017

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Who keeps the pets after a couple separates? It’s a delicate and difficult issue for many people who are faced with this dilemma and there is often some confusion about how family law operates when it comes to pets.

Our first article in this series looked at how family law currently applies to pets – that pets are treated as property – and developments in the United States and the possible future direction of Australian family law.

In this article, we take a look at a recent case as an example of what a court will take into account when deciding this issue.

Background

The husband and wife married in 2014. The wife had lived with her parents prior to the wedding and after the wedding, both the husband and the wife lived with her parents. They separated in early 2016.

The husband and wife were finalising their financial affairs as part of their divorce. They disagreed over the ownership of the pet dog. The husband wanted custody of the dog because he had registered ownership of the dog in his name.

The wife said that the husband had bought the dog for her in 2011 as a birthday present. This was about three years before they married. She said that she had been looking into buying a dog but the husband then offered to buy it for her on the basis that it would be hers and it would stay with her while she lived with her parents.

She also said that she paid all of the dog’s expenses, including vaccinations, food, toys and veterinary bills.

The wife claimed that once they had separated, the dog lived with her. In other words, the dog had been in her possession for the whole time.

On the other hand, the husband claimed that he had always owned the dog but it lived at the wife’s parents’ house because that is where the husband and wife were living at the time.

The complicating issue was that the dog hadn’t been registered before the husband and wife had separated. It was registered by the husband eight months after separation. This was also two months after the wife had sworn an affidavit in which she claimed that she owned the dog.

Decision

This case was perhaps simpler than many other cases concerning pets because the parties weren’t trying to put a dollar value on the dog. Nor were they disputing the assets and liabilities of the marriage. It was simply a question of whether custody of the dog should be transferred to the husband.

As we have previously discussed, pets are considered to be property in family law. So a court will consider them as an item of personal property, much like a piece of jewellery, a share portfolio or an item of furniture.

The Court said that if it were to transfer registration of the dog to the wife, this would be a property adjustment and so the usual principles should apply. That is, the Court needed to look at the assets and liabilities of the marriage and work out whether it would be fair to make an adjustment.

The Court looked at the circumstances including the purchase of the dog, where it had lived, who had cared for it and how its needs were met financially. It found that both the husband and the wife had made financial contributions – the husband bought the dog and the wife paid its ongoing expenses.

The Court decided that the registration should be transferred to the wife and she should be the dog’s legal owner because:

  • She had had possession of the dog since it was bought.
  • She had always paid for everything that the dog needed.
  • She had the ongoing daily care of the dog.

The Court said that the wife was the legal owner of the dog and so she should continue to be the owner and have custody.

What does it mean?

This case reinforces the importance that a Court will place on who has been responsible for the daily care of a pet. If you are considering separation, or are already separated, you need to consider how you can prove the extent to which you have cared for your pet. For example, receipts can prove that you’ve bought pet food, equipment or paid vet bills. Other people (for example, family or friends) may be able to give evidence that you have been the primary carer for the pet.

It also demonstrates a point that we made in our previous article: often the person who keeps the pet during separation will be the one who ends up keeping the pet permanently. So careful thought needs to be given to your pet prior to, and during separation. For example:

  • Consider where you will live and whether any rental accommodation will allow your pet to live with you.
  • Consider whether there are any physical challenges to keeping your pet in your custody. If it’s easy for your partner to simply pick up the pet and walk out the door, you need to work out how to address that, preferably in advance of separation.

If you have separated or are considering separation, Websters Lawyerscan advise you about your pet, whether you are trying to keep it in your custody, or are trying to regain custody. It is a delicate issue and our family lawyers have excellent experience in treading carefully to get the best possible results for our clients. To find out more, contact us today for a free first interview.

Downey & Beale [2017] FCCA 316 (2 Februay 2017)