Heard of the Puppynup? Working out pet custody during divorce? Although pet custody disputes don’t often come before the family courts, when they do, rulings on the pet’s ownership and care are made under property law, given that pets are considered “property” in Australia. With a similar legal situation in many countries around the world, there is a push for lawmakers to make amendments to their laws so that family courts can rule on custody of pets “in the best interests of the animal”, similar to how children’s custody is worked out. However, our courts currently still resolve pet custody disputes using property law principles—though they will factor in unique considerations.
With most petlovers considering their four-legged friend to be nothing less than a family member, it is usually a distressing time working out what to do about care of the pet if the owners are going through divorce. Some couples do make verbal agreements about what should happen going forward, or they choose to document their agreement in a ‘parenting plan’, an informal agreement honoured between the two parties. A pet parenting plan may set out how the pet will be shared on a two week on, two week off basis, or in other cases a couple may agree that it’s best for one partner to exclusively care for the animal.
If the couple wishes to formalise the arrangements through the courts, they can apply for Consent Orders, which are a way to make agreements official after a breakup. Keep in mind the time limits for applying for Consent Orders though: married couples need to apply within a year of their divorce being finalised, while de facto couples need to apply within two years of the breakdown of their relationship.
Couples who enter a Binding Financial Agreement dealing with their finances and assets can also include what is to happen to pet custody in the agreement. This is because pets are regarded as “property” or “chattels” in our legal system. BFAs can therefore incorporate clauses setting out arrangements for pet custody or provisions for the family pet (such as payment of vet fees, training, or holiday care etc) in the event the relationship breaks down.
If a separated couple ends up in litigation, and pet custody becomes an issue in dispute, the court can decide the outcome. And while the Australian courts do emphasise the property nature of pets and apply property law principles, they will consider other unique factors not associated with other kinds of property and which give pets their unquantifiable sentimental value.
Pets are unique in being living, sentient property with emotional bonds with their owners. These factors are considered as relevant in the courts and can take precedence over ‘purely’ property law considerations.
When looking at pet custody, the courts will consider:
- Who mainly cares for the animal
- Who looks after vet trips
- Who feeds the pet
- Whether the pet has more of an attachment to one owner
- If there are children – whether the children have a strong relationship to the pet that ideally should be maintained to provide extra post-divorce stability for the kids
- Which party can best give them safe and comfortable shelter
Around the world, governments are looking into how to enact legislation that enables family courts to rule on pet custody as well as children with the intention of giving the family pet a higher legal status than it currently has.
Two states in America (Alaska and California) have already enacted laws requiring family courts to take the welfare of animals into consideration. This does not place pets in the same category as children, but formalises the need to consider factors such as pet safety and wellbeing when determining custody. It remains to be seen if the current phase of family law reform in Australia will see a similar approach for how pets custody disputes are resolved.
Source: National Law Review
Do you need assistance with drafting a Binding Financial Agreement or another family law matter? Please contact Canberra family lawyer Cristina Huesch or one of our other experienced solicitors here at Alliance Legal Services.
Please note our blogs are not legal advice. For information on how to obtain the correct legal advice, please contact Alliance Legal Services.