It is undeniable that we have a strong emotional attachment with our pets as compared to other personal possessions. Divorcing parents often see their pet as another child in their family. Unfortunately, in Australia, pets are considered personal property, simmilar your personal assets such as furniture, cars or computers.
Does your pet generate income? Is your pet a pedigree show dog/cat or a racehorse? If yes, then they are seen as a significant asset. The court will need to consider the “market value” of your pet. You will need to offer evidence to assist the court in determining an appropriate value to the pet (such as a sworn valuation).
Many pet parents are mistaken that there are formal court orders regarding living or custody arrangements for their pets. The fact is that Family Law Courts have limited power to deal with pets. There are no specific provisions in Australia’s family law as to what happens to family pets when there is a divorce.
Read on to find out options to resolve and formalise custody issues over your pet in your divorce.
1. Reaching an agreement in your divorce
Pet owners are encouraged to come to an agreement about where the pets live when going through a divorce. You are the people who know your pet best. You would know how much each family member is attached to the pet.
2. Considering mediation
Sometimes in a divorce, it may be that one on one communication is no longer possible. If you are unable to discuss amicably between yourselves, let a mediator facilitate the conversation.
Mediation is a way for both parties to come to an agreement that would satisfy both parties. Attending mediation may allow both of you to decide the following:-
- who the pet is to live with;
- how much time the pet will spend with respective parties;
- who pays for the expenses of the pet and the like; and
- other matters you wish to discuss and decide on.
If a settlement is reached, the agreement will demonstrate both parties’ intentions. You should know that this agreement will not be legally enforceable.
3. Seeking legal means
After attempting the above and if it seems like no agreements will be reached, you may consider seeking legal means. The court can provide a binding financial agreement or a property order, which are legally enforceable.
If you include your pet in a divorce property settlement, it will be treated as an asset and the court can make any order it sees fit. However, you should know that legal enforcement may only go as far as to determine who will get to keep the pet (like any other asset), and not the daily arrangements for the pet.
The court will often consider the following:
- Which party paid for or adopted the pet?
- Who has the pet resided with prior to, during and following separation?
- Which party has a suitable place for the pet to live?
- Which party was the main caregiver? – evidence to show care for the pet, the financial responsibility of pet’s expenses
- Who paid for the pet and in whose name is the pet registered in? (not key consideration if this same party is not the main caregiver)
It may be worth noting that even if party A paid for and has the pet’s name registered under his/her name. The court may still find that party B to be the owner of the pet if party B has evidence as to his/her care of the pet since the pet entered their lives. Party A will likely be ordered by the court to do all things necessary to transfer the pet to party B.
So, who gets to keep Buddy? It all depends on whether you are able to talk it through and arrive at the best outcome for both you and your fur baby. Never forget to keep both your pet and family’s best interests at heart.
There is no such thing as an easy divorce, but it can be made easier with the right lawyer on your side. Ascent lawyers are committed to providing personalised, attentive representation that achieves the best outcome for you. We are also animal lovers. So, we will always keep your pet’s interest in mind.