Divorce What Happens to Pets After Human Separation?

Divorce and separation are hard for everyone but what happens to the family pet? Pet Problems Solved gets advice from lawyers to guide you through difficult times with your pet…

Divorce What happens to pets after human separation?

Who gets the dog? Or the cat?

We all find the perfect person, get married (or more modernly, co-habit) and live happily ever after – Right? Unfortunately not!

Divorce and separation amongst couples are almost as common an outcome as staying together these days and so everyone needs to consider what to do with their assets on separation – sell the family home and car; share the furniture; but what about the pets?

Pet Problems Solved has been talking to 4 lawyers about their experience with people and their pets after separation and divorce. Here are our questions and their responses…

Q. Is shared care of a pet desirable for most separating couples or do most tend to agree who gets the pet?

A. As much as our pets feel like our children and are part of our family, pets are actually property. The Family Court treats pets as property, not as children. So shared care is not an option, unless it’s very informal and agreed between the separated couple. Most people decide between themselves who will keep the pooch. (Marie Fedorov of Fedorov Lawyers)

And Prue Burrell, of Burrell Family Law says “To be clear, in the eyes of the law, a pet is property, so the considerations for shared care with children are not relevant, from a legal perspective.  However, in my view they do provide a helpful framework for raising some questions which might assist pet owners in negotiating a resolution of living arrangements for their pet post-separation.

Some relevant questions might be – Is it really in your pet’s best interests to be living between two households? With different routines? Different sleeping arrangements? Different housemates?

How will you reach decisions about your pet’s health? And who will pay for the vet?  Can you communicate and co-operate effectively to ensure your pet’s health and wellbeing is the priority? Is it practical for you to be doing pick-ups and drops offs of the pet around work and other commitments? How far apart do you live? What’s the commute time? Do you have suitable accommodation for the pet?

After reflecting on these questions, you may have a better idea of whether shared care is something that is really best in your situation.  It is also important to remember that depending on the age of your pet, this may be a long-term arrangement, so even if it seems achievable now, will that be the case in 1 year? 5 years?

All these complexities make it more common, in my experience, for one person to keep the pet.  That said, I have come across situations where people are able to share care of a pet, but again a high level of communication and co-operation is required.”

Q. What factors would decide who gets to keep the pet?

A. “It depends who is deciding. If it is the court deciding, for legal purposes in Australia, the pet is treated the same as any other asset. Some factors the courts have taken into account include whether the pet was acquired prior to the relationship, who paid the vet bills, whose name the pet was registered in and who the pet stayed with after separation.

“As a pet owner, my considerations would include: who spends more time with the pet, who is able to care for the pet, whether there are multiple pets that can’t be separated, and how the pet would react if separated from one of you. ” (Kasey Fox, of Farrar Gesini Dunn)

Q. Do people end up in Court, mediation or anything else over their pet?

“Cases involving arrangements for pets can and do end up in the Family Court.  It’s important to note in my experience they are often as part of an overall property settlement, rather than just a case about the pet. There was a recent Family Court case which looked at the issue of pet ownership. In that case, the couple had resolved all property issues, except ownership of their dog.  They wanted the Courts to determine who should keep it. 

“It is well accepted that Courts are under-resourced and there are often lengthy delays in matters being resolved. In light of the demands on the Court system, in my experience, Judges would prefer that parties sort out disputes about chattels (including pets) themselves.”  (Prue Burrell)

Case: Downey & Beale
Federal Circuit Court of Australia
The husband and wife agreed how to split everything else (house, furniture, superannuation) but could not agree about the dog, so the judge had to make a decision.
Purchase and registration of the pet were considered, in addition to ongoing care.
The wife was awarded care of the dog with findings such as  ‘the wife has contributed to (dog’s name omitted)’s care directly and financially as well as directly and non-financially”.

Q. Hate to ask but what would be costs involved in fighting for your pet?

A. It’s a bit like asking how long is a piece of string, but if you do fight over the pet, you’re likely to spend a lot more on legal fees than you did on buying the pet in the first place. (Kasey Fox)

“If the pet negotiations are part of the usual property negotiations had then it would be part and parcel of the usual costs for property adjustment. If the sole issue in dispute was who will get Ruffy then to negotiate and attend mediation you might spend $3-5k each. At Family Mediation Station you could walk away paying half of this cost. If you didn’t reach agreement at mediation about who was to get Ruffy and applied to the Court for an Order then $10-20k perhaps might get you an outcome.” (Marie Fedorov)

Q. How could people in happy relationships prepare for this unhappy scenario?

“Pets can be covered in prenups (known as binding financial agreements in Australia). At the very least, have a discussion about it before you buy the pet, and if you agree who should keep the pet, register the pet in that person’s name and if possible, keep a written record of that agreement.” (Kasey Fox)

“As pets are regarded as property, if parties wanted to enter into a Financial Agreement (which can be signed either before or during the relationship) they could possibly include provision for ownership of the pet (but possibly not visitation).  For Financial Agreements to be binding both parties need independent legal advice and there are the associated legal fees to bear in mind.  These agreements if drafted correctly would provide some protection from an argument about the ownership of the pet at the end of a relationship.

“Otherwise it may be a matter of being conscious about the decisions around who pays for the expenses of the pet, registers it in their name and cares for the pet – knowing these are the factors that will be considered.” (Prue Burrell)

Q. Is there anything else you’d like to add?

A. “Divorce courts are a very blunt instrument, and the law treats fur babies like a piece of furniture, rather than a member of the family. Reaching agreement is the best way forward for everyone, and even better, is reaching an agreement before you separate.”  (Kasey Fox)

“The Washington Post in January 2017 reported on changes to family law in Alaska requiring Courts to take “into consideration the well-being of the animal”.  It will be interesting to see if this a trend which is followed in other jurisdictions, including Australia. (Prue Burrell)

“As much as we love our pets, usually we see the dispute about who will keep Ruffy as being more than just an owner wanting to keep their pet. There can often be more to the story. Once we discover the real reason each person wants to keep the dog it can often be easier to work out who should actually keep him. “(Marie Fedorov)

Here, Shaya Lewis-Dermody, Principal Solicitor at The Family Law Project talks us through “Who gets the dog”

Thanks to each of these lawyers for contributing. Please support them by using their services if needed.

• Shaya Lewis-Dermody, The Family Law Project, Adelaide/Perth/Online
• Marie Fedorov, Fedorov Family Lawyers, Gold Coast
• Kasey Fox, Farrar Gesini Dunn, Canberra
• Prue Burrell, Burrell Family Law, Victoria

Let’s leave the last words to Richard Laycock, Insurance Expert at Finder.com.au
“Remember that your pets probably know there has been a change, so make sure you keep an eye on them for any changes to their eating habits or mood. If you move house and notice any behavioural differences, you might want take them to the vet for a check-up, which may be covered by pet insurance. It’s a good idea to keep your pet’s routine as stable as possible.”

About the author
Dr Jo Righetti is an animal behaviourist with a passionate interest in the human-animal relationship. Jo continues to explore new research on animals and help keep the human-animal bond going from strength to strength. More info here.

More on life with pets:

How to care for yourself while caring for pets
Do dogs miss us?
Pets at your wedding