By Sharla Stevens
Separation can also cause a lot of confusion and behavioral problems in pets. As more and more Australians are owning pets, and a lot of couples buying pets and choosing not to have children, the question of what happens to the pet once the couple separates is becoming an increasing issue.
Animal behaviourist, Kate Mornement, has said that she has seen a number of cases of pets with “behaviour problems following separation or divorce…most commonly separation anxiety in dogs. Any big disruption to their normal routine or breaking of attachment bonds affects them a lot.” Although sometimes separation can be a positive if the pet has witnessed any sort of verbal or physical abuse which, like kids, can cause stress and anxiety.
It has also been commented that when pets are kept with the children and shuttled between households this may be more detrimental to the pet, as they’re not allowed to settle into one home. This type of situation may also be detrimental where one of the parents was the main carer for the pets and potentially means that the pet is left with a person not necessarily best suited to care for the animal.
Other times families have to give up their pets if they end up moving into smaller homes or apartments that aren’t suited for pets, or if the parents have to return to full time work.
So how does the law treat our furry friends?
Although they may become part of our families, and some people even refer to them as their “fur-babies”, the family courts still classify them as property. This can be seen in the case of Langley & Bramble  FamCA 437 where the wife sought the return of the dog to her care on the basis that the dog was the child’s pet. The husband argued that the dog was his prior to the child’s birth and had always been with him. In this case the Judge ordered that the dog stay with the husband.
The Judge in the case of Jarvis & Weston  FamCA 1339 took a different approach, though, and linked the issue of custody of the dog with the welfare of the child. The husband wanted more time with the dog then what he was current having with their son. In this case the Judge ordered that the dog stay with the child and move between households when he did.
This does not appear to be a decided area of law in the family courts and we could continue seeing a variety of judgements. In terms of costs in relation to pets, though, it seems unlikely that a Court would order parties to share veterinary and other related expenses as pets are considered as property and Courts ultimately tries to make orders that will finally determine the financial relationships between the parties, rather than providing for ongoing maintenance, etc for an asset (see Section 81 of the Family Law Act 1975 (Cth)). Rather than a Court Order, though, parties may be able to negotiate and enter into a private agreement in relation to pet expenses.
For more information see: http://www.abc.net.au/news/2016-03-17/what-divorce-looks-like-for-a-dog/7252666.
If you require assistance in relation to your family pets or any other family law matter please contact Cristina Huesch or one of our solicitors Sharla Stevens or Angela Li on (02) 6223 2400.