As more Australian couples choose not to have children, custody of the relationship dog, or “fur baby” has become one of the new battlegrounds for separating couples. One couple recently took this issue before the Court asking for live with and spend time orders in relation to the family dog.

In Davenport v Davenport the wife purchased a dog, given the pseudonym “D”, from a rescue shelter prior to marriage.  D was registered in the wife’s sole name.  The husband submitted that he contributed $1,633 towards D’s food, kennel, toys and vet costs.

When the parties separated, D remained living with the wife. The wife subsequently initiated proceedings seeking property orders that, amongst other things, she retain D. In his responding documents, the husband did not seek property orders in relation to D, and instead he claimed that the wife had kidnapped D and sought interim orders that:

• D lives with him two days/nights per week;
• That he collect/deliver D from/to the wife at an agreed location; and
• That he contribute $20 per week towards the care of D.

The husband’s case was dismissed for lack of jurisdiction. The Court stated:

“The Court is aware that for many people pets are regarded as members of the family however there is no provision under the Family Law Act and no specific legislation that deals with issues such as the “custody” of a pet whether that be a dog, cat, bird, lizard, fish or any of the wonderful creatures that we share the planet with that would empower a Court to make orders for shared custody of a pet”.

Referring to previous cases, the Court confirmed that the law considers pets to be property and therefore orders cannot be made about their custody. In family law proceedings, a pet will be treated in the same way as a car or jewellery is treated. If the pet or animal has a significant value or is a source of income, the value of the pet will be included when determining an overall property settlement.

In dealing with pets in family law proceedings, the court may consider a number of factors such as:

• Microchip details;
• The pet’s Council registration;
• Who wanted to purchase the pet and who actually purchased the pet;
• Who cared for the pet;
• Who trained the pet;
• Who took the pet to the vet; and
• Who pays for the insurance.

When considering who retains the family pet, the court may also consider the impact or extent of any emotional attachment children may have with the pet. In the case of Jarvis & Weston the Court ruled the mother was to retain the family dog because the child of the relationship who was to live with the mother, had a significant attachment to the dog.  The Court noted “The boy is attached to the dog. The dog is to go with the boy”. Often in high conflict parenting matters, the dog will stay with the child to help ease the transition.

We are seeing more couples entering into Binding Financial Agreements or “pre-nups” and including family pet in the agreement in an attempt to take the bite out of separation.

If you are contemplating separation or have separated from your partner and are concerned about what may happen to your pet, please contact Agar Legal for a no obligation discussion.