Family Law: “I’m keeping the pets!”- By Marwa Shabbar :: Websters Lawyers
Have you ever heard of Pistol and Boo? They’re the two dogs who rocketed to fame after it was alleged that in 2015 their celebrity owners, Johnny Depp and Amber Heard, illegally brought them into Australia. More recently, the Yorkshire Terriers have been in the headlines as the subjects of a custody battle between their divorcing owners.
You may think that disputes over pet custody exist only in the realm of the rich and famous. But it’s a surprisingly common issue for separating couples from all walks of life. It’s also difficult and heart-wrenching because 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 Australia, because pets are treated as property, the Family Court won’t make decisions about pet visitation, custody or financial support. That’s right, there’s no such thing as moggie maintenance or animal alimony. 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 that 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 orders are fair and reasonable.
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. In most cases, 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 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. But the good news is that Websters Lawyers has a team of outstanding family lawyers who are highly experienced in property cases. Contact us today for a free first interview.
This article provides general information only. For advice specific to your needs, you should consult a lawyer.