Pet Custody In Australia

With regards to dividing assets and parenting children, the law is reasonably straightforward, but what about custody of your pets?

How do you determine in a separation or divorce who gets to keep the dog, the cat, the fish, or any other fur baby pet acquired during your relationship?

If you can, work out who gets the pets privately in your divorce.

Pets are part of the family, and even though you might love your pet, when it comes to family law in Queensland all pets are classified as property.

Your family pets – cats, dogs, fish etc – are not considered valuable assets by family law and the courts will generally frown up any disputes concerning such pets.

There are exceptions, of course. If an animal has a monetary value, like a racehorse or a pedigree dog sought after for breeding, the Courts will take this into consideration in the property settlement. If the animals generate a substantial income, such as cattle, they will be included in the property settlement.

It is best to try and sort out an agreeable custody privately, however if you cannot agree on who will keep your dog or cat, or sharing days, you can get the courts involved. This will never be part of the custody agreement; it will always be in the property settlement.

If there is simply no way of working out your pet’s custody and sharing the matter will go to family court as part of your property settlement, where some of these points may be considered:

Keep in mind that if your pet becomes part of the property settlement, like a house or a car, the court can order the pet to be sold so you can split the proceeds.

Despite the Court not dealing with pets as sentient beings, there are a couple of recent cases where pet custody is explored. In Downey v Beale, his Honour Justice Harman stated, “one would hope, in this neoliberal world, that we have not yet come to the point where even love and affection are commoditised”. In this case, the only remaining issue in the matter was who would get the dog.

If you have shared human children, the court might decide that the pet should stay with the children, meaning that it will travel with them between the parents’ houses depending on custody arrangement; or alternatively order the dog to stay with the parent who sees the children less to decrease their stress and solitude.

In 2020, the matter of Davenport v Davenport considered whether separating couples can have custody of their pets. In this matter, the Wife purchased the dog from a rescue shelter prior to the couple living together. The dog was registered in the Wife’s sole name however the Husband claimed to have financially contributed to the dog. While the Wife sought Orders to retain the dog, the Husband claimed that the Wife had stolen the dog and wanted them to be returned so they could share joint custody. Ultimately Her Honour Judge Tonkin found that there were no powers under the Family Law Act to allow a Court to make a shared custody order for a pet.

Should your matter proceed to Court, your pet will be considered property. Keep in mind, once the court has signed orders, it is very hard to appeal the decision, so it’s often in everyone’s best interests to settle pet matters privately.

While currently in Australia pets are classed as property for family law purposes, there has been development in other countries where pets are now being recognised as sentient beings. As of January 2022, Spain no longer regards pets as property in the context of family law proceedings, but rather classes them as being sentient beings treated as legal family members.

While Australia has not reached this conclusion yet, it is paramount to not forget your pets’ and their needs whilst going through a separation.

We understand how important your pets are to you, here at Queensland Family Law Practice we bring our dogs into our offices on Fridays! If you need solicitors to assist you who understand your needs, especially around fur-babies, get in contact with us.