Who gets the dog in a separation?

Pets are a huge part our lives, and at times are viewed almost as children. However, in the eyes of the Court, pets are seen as property, rather than members of the family.

In Australia, pets are considered property under the Family Law Act 1975. Therefore, in the event of a separation or divorce, the court determines who gets the dog based on the same principles it uses to divide other property.

The court will consider factors such as:

1. Who purchased the dog: If one party can prove they purchased the dog, the court may be more likely to award the dog to them.
2. Who has been the primary caretaker: If one party has been primarily responsible for the dog’s care, such as feeding, grooming, and taking the dog to the vet, the court may consider this factor.
3. The dog’s welfare: The court may also consider where the dog will be best cared for. This could include considering who has a suitable living environment for the dog, who has more time to spend with the dog, and who is better able to afford the dog’s ongoing care.
4. Children’s attachment to the pet: If there are children involved and they have a strong attachment to the dog, the court may consider this and may be more likely to award the dog to the parent who has primary custody of the children.
5. Any agreements between the parties: If the parties had a pre-existing agreement about who would keep the dog in the event of a separation, the court may take this into consideration.

It’s important to note that the court’s primary concern is to make a just and equitable division of property. While the emotional attachment to pets is understood, they are legally considered property and will be treated as such in a property settlement.

However, many disputes about pets can be resolved outside of court through negotiation or mediation. It’s always recommended to seek legal advice to understand your rights and options.

In the case of Downey & Beale [2017], ownership of a pet was determined by contributions made towards the purchase and maintenance of the pet. In Downey & Beale the Court considered which party was responsible for the care and protection of the pet, who purchased the pet, with whom the pet was registered, who paid for the costs associated with the pet, and where the pet lived after separation.

Because pets are property, they can also be subject to a Binding Financial Agreement (BFA), also known as a Prenuptial Agreement or Prenup. A BFA is an agreement made outlining which of the parties to a relationship will keep what property in the event of a separation.

You should always get advice from the best family lawyers. Barker Evans provides expert family law advice, and we are located in the heart of Sydney CBD. We have considerable experience in dealing with matters than concerned much loved pets. If you want advice from an expert family lawyer, please do not hesitate to contact us for a free 15 minute consultation on (02) 8379 1892 or info@barkerevans.com.au.