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Who gets the dog in Australia after a separation?

When couples separate, what happens to the family pet? This is the question we put to Jane Libbis, Partner at Umbrella Family Law and if you live in Australia, here's how the law currently stands.

Earlier this year (January 2022), a Spanish court ruled that couples should in some cases share custody of pets, just as they do with children.

In Spain (as in France, Germany, Switzerland, Austria, Portugal and some US states), companion animals are recognised as living beings. When a couple separates, the welfare of any pets is principally what determines the custodial arrangements.

In contrast, here in Australia, pets are thought of as chattels alongside furniture, houses and cars. Our laws don’t take the welfare of pets into account. Instead, who keeps Bluey or Bingo is negotiated as part of the property settlement.

The Family Law Act (1975) determines the way in which property is divided between couples,  post-separation. When the custody of a pet is in dispute, the court focuses on the cold, hard facts, including:

✔️ Who paid for the animal?

✔️ In whose name is the animal registered?

✔️ Who has capacity to pay for the ongoing costs of the animal?

Australia’s courts do not take into account what is in the best interests of your darling pet.

According to Animal Medicines Australia, Australia has one of the world’s highest rates of pet ownership. There has been a substantial boom in pet ownership since 2019, with an estimated 30.4 million pets nationally. The proportion of pet-owning households has increased significantly from 61% to 69% in just over two years - led by a surge in dog ownership.

As a family lawyer, I’ve observed a marked increase in demand for advice about pet custody matters – so much so that my entire legal team is undertaking the pet custody course conducted by Karis Nafte, a recognised global expert in animal behaviour and pet mediation.

As an aside, in Australia we no longer use the term “custody” in relation to children however the term “pet custody” is well understood short hand.

The dissolution of a relationship is heart wrenching, whatever the circumstances. However, when separating, couples must put their emotions aside, hard as that is, and prioritise the interests of their ‘fur baby’.

What’s best for the pet will depend upon a myriad of factors including the breed and age, the amount of exercise the animal needs and is used to, and the animal’s health and behavioural history.

Returning to Spain, animal rights activists will celebrate that country’s recognition of pets as living beings. But is shared custody of a pet really viable and if not, what are the options?

We often encounter couples who want their pet, usually a dog, to travel between households with the children. But is being shuttled between houses really in the best interests of a pet?   Again, this will depend on a raft of factors, including the temperament and resilience of the animal. Rescue dogs, for example, are generally less able to cope with change.

Through our training with Karis Nafte, we learned of a family who had called for assistance with their dog which had suddenly started eating their furniture. It transpired that in separating, the father of the family, who had usually exercised the dog, had moved out. 

The mother, finding herself alone, did not have the time to take the dog for runs. So, the bored and restless pooch used its pent-up energy to devour the couch. With Karis’s help, the family reconciled that it would be best for the dog to live with the father who could continue its rigorous exercise regime. The children could enjoy their dog when they spent time with their dad.

Of course, animals are not always merely family pets. 

Sometimes they are service or emotional support animals

Clearly, if a pet is required by its owner for aspects of basic daily living, such as a seeing eye dog or one which is trained to respond to medical emergencies (such as changes in the sugar level of a diabetic or signs of an epileptic attack), the animal must be retained by the person it is trained to serve. This is a no-brainer.

In the case of an emotional support animal, consideration may need to be given to the point at which the pet was classified as providing emotional support, and whether or not one party had a genuine and verified therapeutic need for the animal. 

While there are many cases in which the support is medically required, sometimes, unfortunately, we see this classification being obtained post-separation as a means to gain the upper-hand.

If joint custody is considered best for an animal, couples would be wise to put a pet custody agreement in writing

That agreement should address the pet’s schedule, transportation arrangements, visitation rights, end of life arrangements, and who pays for veterinary care, grooming, food, insurance, and other pet needs. 

In order to make the agreement binding (remember, pets are considered chattels), the arrangements can be incorporated into a binding financial agreement together with the rest of the property settlement.

Separating couples should not rely on Australia’s courts to rule on custody of a pet. Though the Family Court has the power to make decisions about pets, it has been reluctant to do so.

Mediation is available if direct discussions and the advice of an animal behaviour expert cannot resolve a pet custody dispute.

Ultimately, pets should never be used as a weapon or bargaining chip which is why we recommend that couples consider what will happen to their pet early in their separation discussions.

About the Author

Jane Libbis is an experienced and compassionate family lawyer and a founding partner of Umbrella Family Law

Melbourne-based Umbrella Family Law are dedicated and experienced lawyers working exclusively in family law and with problems that arise for families.

Jane is passionate about helping people to navigate the legal, emotional and practical issues associated with family relationships.

She is the besotted owner of an 18-month-old Havanese called Harvey.

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