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Who Gets Fido?

Thursday 30th January 2020

By: Nicky Neville-Jones

What happens to pets in the event of separation?

In our modern times, it is important to know not only what your rights are in relation to parenting and family property matters but also, and perhaps critically for many couples who are electing not to have children or to have children later, is who gets your furry companion in the event of separation. 

It might surprise you to know that your furry, feathered or scaled friend who you might have purchased during or at the commencement of the relationship, is considered under the Family Law Act (Cth) 1975 to be “property” of the relationship and therefore akin to an arm chair, table or vacuum cleaner.

Perhaps you are alarmed given how well regarded and loved pets are in Australian society, that they have no rights and legally are considered no differently to other household property and chattels. Despite this, recent case law in Australia demonstrates that decisions relating to pets and who ultimately owns them, have been decided in various ways by the Courts in an effort to apply the law while also being mindful of the high value we place on our domestic critters. Because of this, the outcome of these decisions can often be uncertain and therefore it is advisable to agree upon arrangements for Fido early on, either during or before the commencement of the relationship, in the event of separation, rather than leaving it to the Courts, which can be an expensive and emotionally taxing process.  

Recent cases look to the facts of the case which might assist them in deciding who best to retain Fido. The Courts have considered issues such as what each owner’s financial contributions to the maintenance and upkeep of Fido were during the relationship as well as who met his basic needs including walking, feeding and taking Fido to the vet. Reference has also been made to who legally owns the animal on State animal pet registers and council registrations, however case law demonstrates that legal ownership alone (as with other chattels dealt with under the Family Law Act) is not always enough to retain the ownership of Fido and other factors might come into play, such as who made the greater financial contribution to Fido’s day to day food and vet costs. Some cases placed significant weight on who possessed and looked after Fido post-separation and if both owners have the ability to care for Fido, this fact alone might be enough to persuade the Court that it is best to let sleeping dogs lie (with that owner).

Some cases have also referred to where the children now reside and whether, given their closeness to their furry friend, this is an appropriate way of deciding who Fido will live with.

Generally speaking, the Courts are reluctant to make Orders providing for a “sharing” arrangement for Fido. As with other property, the Court must ultimately decide who will retain Fido. Unfortunately, although considered by many to be a “furry baby”, Orders regarding pets must deal with possession and maintenance, rather than spending time with the pet.

Given the various ways the Courts have determined who keeps Fido, you may wish to consider entering into a Financial Agreement or “Pet-Nup”, either at the commencement or during your relationship, which can, if you wish, solely deal with the matter of who ultimately will have the care and ownership of Fido to avoid the unpredictability of Court.  

If a Financial Agreement is too formal and costly, you may wish to consider who the Court might award ownership of Fido to in the event of separation now and then make arrangements to evidence ownership, including ensuring that you are the registered owner of Fido, consider who purchased Fido and who in the relationship is paying for Fido’s basic needs. These are all matters that, as mentioned above, have been taken into consideration by the Courts when deciding where Fido will live.

Overall, planning is key if you think that in the event of separation there might be a disagreement over ownership.

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