Australians love their pets and as such they are considered precious members of the family. However, if you separate from your partner or spouse, the law may not consider pets as the fur babies they are to you. So how do you ensure your beloved fur child is looked after if you and your partner were to go separate ways?

Current approach

If separation is not amicable and your case ends up in court, the unfortunate reality is pets are considered to be like any other property or asset you may own – a thing to be allocated. Legally speaking, a pet cannot be classified as anything other than property.  If it is unclear who the owner of the pet is, the court can make an order as to who legally owns the pet.

The court may consider the following factors in determining ownership of the pet:

• If the pet is registered, the name the registration is under (although this is not always a strong determinative factor);
• How long one of the parties has been caring for the pet (if it is significantly longer than the other party);
• Who the main financial contributor has been;
• The emotional connection of each party to the pet; and
• Where children of the relationship will be predominantly living (as courts have previously ordered that a pet was to stay with a child).

Your options

If you currently share the care of a pet with a partner or spouse and are worried about what may happen should you separate, the safest option is to enter into a binding financial agreement that details who the pet will live with and any other circumstances you may wish to dictate, should your relationship break down.

If you are currently going through the separation process after a relationship break down without an agreement in place, there are three main options:

1. Attempt to negotiate an outcome privately with your former partner;
2. Attempt to negotiate an outcome with the assistance of legal representation and enter into a binding financial agreement; or
3. Apply to the Court for a declaration of ownership or an application for property orders.

As with any dispute, especially litigation, the outcome is never certain. Additionally, as Courts are required to treat pets as property, what is in the best interests of the pet may not be taken into account. Therefore, to ensure your fur child is well looked after should your relationship break down, the only preventative measure is to enter into a binding financial agreement where you are able to set the terms of pet custody amongst other things. 

Hillhouse Legal Partners can provide assistance with negotiations and/or binding financial agreements in family law matters.