Christmas, Pets, Parenting & Property

As Christmas approaches we are often reminded to think very carefully about buying a dog or cat as a Christmas present: pets have feelings and will be part of the family for years.

However, when we look at Family Law proceedings and property settlements, we learn that our family pet is property.

This can be very distressing especially when children are already upset about their parents’ conflict and separation. Losing their dog, cat, bird, ferret or lizard may further undermine their emotional security.

Consider the Children

If parents can communicate amicably then a sensible solution can be worked out. The pet stays with the children and the parent with whom they live.

If the non-resident parent has a strong affection for the pet, the children may be able to bring the pet with them when they spend time with that parent.

With a bit of give and take, situations can be resolved.

The Courts will always look at what is best for the children and keeping their pets can be an emotional support for children after their parents separate.

If the parents cannot agree the Courts will look at the situation from the perspective of what is best for the children. As pets are considered a “chattel” and part of the family assets, then there will be an adjustment for the value of the pet in the property settlement of the parties.

Are Pets family?

Many clients are surprised that when dividing the assets of the parties who are separating, pets are considered part of the property pool.

If, for example, one parent wants allowance made in the final division of property for the thousands of dollars they paid for an exotic breed of dog, the Courts will have to balance that amount within the contributions of that party.

If the purchaser of the dog wants to keep the dog no matter what because of the amount they paid then the other party may receive less to take that contribution into account.

The children may not understand the financial settlement and only think that one parent is being vindictive.

It is important to consider the impact of such a dispute on the children’s emotional and psychological well-being.

What if you don’t have children?

It can be difficult for parties without children when they have made their pet an integral part of the family.

In such cases the Court has to work out who owns the dog. Is it the party who purchased the pet? Is it the party who received the pet as a gift?

In Downey & Beale [2017] FCCA 316 the Judge had to look at such a situation. The dog had been purchased for the wife while engaged. The dog had then lived with the wife at her parents’ home. The wife paid for all the food, toys, vaccinations and operations. When they were married the husband moved to the home of the wife’s parents.

After the couple separated the dog continued to live with the wife. However, 8 months after separation the husband registered the dog in his name. Legally the dog was in the husband’s name.

When considering all the factual circumstances of the case, the Judge determined that the wife owned the dog as she had the care and possession of the dog who had remained living with her. He ordered that the wife be declared the dog’s owner and for the husband to transfer the registration of the dog to the wife’s name only.

Just as in all property matters, to prove one party’s greater contribution in this instance to the care of the pet, a party should have evidence of veterinary bills, operation costs and general food and related items for the pet.

Legally Dogs are Property but they are still part of the family

No one wants to be involved in a lengthy and delayed court case. If parties cannot work out a solution by themselves it is much more preferable to attend a form of alternative dispute resolution such as Mediation.

Each party can give their point of view and the Mediator can help them work out a way forward. Parties can even seek an assessment from an expert in animal behaviour to work out what home is best for the pet.

In avoiding Court, when children are involved, the parties can work out a way of sharing the pet where the children bring the pet with them.

As the Judge in the Downey & Beale case said “dogs are not our whole life, but they make our lives whole.” It is good advice to remember that and reflect on the pet’s feelings, whether it is displaying behaviours that are hiding stress and make interactions between the pet, the children and the parties as amicable and cordial as possible.

Please be advised our office will be closed from 5:00pm on 16 December 2022 and reopens at 8:30am on 9 January 2023

This article and the information contained herein is not intended to be a complete statement of the law on any subject and should not be used as a substitute for legal advice.