Following a relationship break-up it is becoming increasingly more apparent that disputes are going beyond the living arrangements of the children, property disputes and division of superannuation.

The fate of family pets is becoming a larger problem for both litigants and their lawyers.

Many family law litigants mistakenly think the Family Court can help resolve pet custody disputes. The position is clear: The Family Court in Australia does not rule on the custody of pets.

In Australia, pets are considered part of the couple’s personal property. They are treated like furniture or any other piece of personal property. The difference is of course that pets are living beings and they experience mistreatment and cruelty whereas property does not.

The reasons are understandable

One explanation is that people often feel that pets are like children. We are dealing with really strong emotional bonds that get formed over time. Separating couples are dealing with a grieving process and the family pet is important to them.

For couples in childless marriages animals can be really important and people in these circumstances can find it difficult to understand why the Court can’t deal with a litigant’s emotional attachment.  For some instances, such as couples on second marriages between older partners who didn’t have children at home, the pets form part of the family and effectively replace the children they have not been able to have.

How does the Court deal with the issue?

Interestingly, pet custody cases have a long history in the American family courts however in Australia essentially the law treats pets as assets.

If they are breeding animals then they essentially become a business asset. If they are companion animals they are treated as personal property just as the Court deals with photos and CDs and whilst that will sound harsh to animal lovers, it is the reality of how the Courts treat pets.

To make matters worse for pet lovers, the Family Court can get frustrated when people bring up these matters before a judge, who is more focused on issues that are more difficult to tackle, such as child abuse. Therefore it is best dealt with by negotiation.

How lawyers deal with the issue

Pets usually enter the discussion when property settlements are being discussed. While most of these negotiations that may lead to agreements that take place outside of the Court, they are increasingly included in formal arrangements.

It is becoming more common for couples to create their own formal pet custody arrangements, including visitation rights, similar to negotiations that are made for children of divorced parents.

Summary

Pets are increasingly at the centre of tug-of-war battles between separating couples.

Ideally separating couples can set aside their differences and agree the best outcome for their pets. Unlike chattels which are often divided between parties on a piece by piece approach, it is better for the parties to be less property orientated when there a pets involved, preferring not to split up pets which are attached to each other.

Helpful and competent legal advice can often help parties decide on shared custody of their pets. If you know someone who may need assistance in this area they should call us on 02 4322 0251 or email [email protected].