Companion animals and family separation

Although some may make light of their significance, the family dog or cat are often de facto family members and can become subject to custody disputes following a separation, as outlined in our article from 2021.

Recent amendments to the Family Law Act commencing on 10 June this year will, for the first time in its 50-year history, make specific provisions for pets, or “companion animals”, in the property settlement provisions for both married and de facto couples.

The amendments introduce considerations for companion animals, which are now classified as a specific kind of property that can be transferred between the parties to a relationship. This allows for a Court, or parties who are trying to resolve matters amicably, to deal with a companion animal as part of the division of property. The Family Law Act now contains provisions to enable interim or final orders to be made about the ownership or transfer of a companion animal.

When determining who retains the companion animal in a separation, the Family Law Act amendments will now require a Court to consider:

1. the circumstances surrounding how the companion animal was acquired
2. who has legal ownership or possession of the companion animal
3. the extent to which each party cared for and paid for the maintenance of the companion animal
4. any attachment by a party or a child of the relationship to the companion animal, and
5. the demonstrated ability of each of the parties to care for and maintain the companion animal in the future without the support or involvement from the other party.

What options do the amendments give Courts if the parties cannot agree on who gets the companion animal?

If the parties cannot reach an agreement, the amendments allow for an order to be made for a companion animal to be sold.

The cost of some companion animals and the ongoing costs of maintenance and care can be significant. Companion animal charities in the United Kingdom encourage pet owners to discuss what will happen to a pet if a relationship breaks down and some of these organisations actually provide “pet pre-nuptial agreements” for new pet owners to consider.

Can the Court order parties to enter into shared care arrangements for companion animals?

Unlike some of the published decisions of the Court dealing with pets, the idea of “shared care” of a companion animal is not adopted in the amendments. The provisions about companion animals make it very clear that only one party to the relationship can have the benefit of an order about the ownership/transfer of ownership of a companion animal. Simply put, a pet cannot be the subject of a “shared property” order.

It is important to note that the amendments will not prevent parties to a relationship who want to reach their own arrangements about the pets from doing so. It is common for pets to move between households with children where there is a shared care arrangement for children. The considerable drawback to this type of pet parenting arrangement is it cannot be enforced under the Family Law Act.

Family violence and pets

The amendments also contain specific provisions that must be considered in instances of family violence. The changes include factors to assist the Court in making determinations of whether a party should retain ownership of a family pet where allegations of domestic and family violence involve companion animals.

These include:

1. any family violence that the companion animal was subjected or exposed to by a party of the relationship, and
2. any history of actual or threatened cruelty or abuse by a party towards a companion animal.

These provisions seek to consider instances where threats have been made or actual violence is suffered by the animal, or worse still, if one party euthanises a family pet without consulting the other party. The later action has led a number of veterinary practices adapting internal procedures to include written consent of all owners prior to irrevocable treatment of their patients.

What about other animals?

Pets are referred to as “companion animals” in order to distinguish them from service or assistance animals or general livestock more commonly owned in rural or regional areas. The reference to “companionship” is an important distinction. Animals that are kept as part of a business, for agricultural purposes, or for laboratory testing or experimentation are not considered to be companion animals.

Whenever your personal situation changes – we’re with you.

Helping clients take control of their circumstances, Thynne + Macartney’s Family Law team has the experience to help understand your options, know your rights and work towards the best outcome for you and your family. Nichola di Muzio and Andrew McCormack are Queensland Law Society Accredited Specialists in Family Law. They are also qualified as Collaborative Lawyers and members of the Queensland Association of Collaborative Practitioners.