What happens to our dog when we divorce?

Pets and divorce

Whether you are married or in a de facto relationship, separation can be devastating. For many of us, pets are members of our family and it is hard to imagine our lives without them. But what happens to the pets when a relationship breaks down?

The lowdown on divorce and pets

1. Pets are treated as property

It is hard to see our fur babies being treated as objects, but unfortunately, the law regarding pets has not progressed much, and for that reason, our pets are treated as property.

That means, there are no pet custody arrangements in Australia. Generally, if you separate, the pets will go with one person, and that person is under no obligation to allow you to see the pets in the future.

2. Pets can be included in prenups

Prenups (or binding financial agreements as they are known in Australia) can be entered into either before or during a relationship or marriage. Generally, as part of one of these agreements, the couple will list all of the property they have at the date the agreement is signed – and this can include pets. The purpose of the agreement is to set out how any property will be divided in the event of separation. As pets are treated as property, your agreement can set out who will keep the pets if you separate.

For me, our pets were an important part of the agreement with my fiancé, as I did not want to have a dispute about our pets in the future. You can learn more about pets and prenups, and why as a family lawyer I decided to sign one, in ‘My prenup states the dogs stay with me’ featured on SBS.

3. Your pets can be part of your property agreement

If you don’t have a prenup, and you separate, you need to formalise an agreement to separate your property. This is usually done by Consent Orders made by the Family Court. Your pets should be considered and included in these Orders to ensure there is no misunderstanding about who will keep the pets. This is particularly important if the person keeping them is not their registered owner. If for example the pets are registered in the Husband’s name, and the Wife is keeping the pets, you can include in your agreement, Orders that require the Husband to transfer the registration and ownership of the pets to the Wife.

Pets and divorce

4. If you can’t agree, a judge might decide for you

If you cannot reach agreement about who keeps the pets, the decision might be made by a Judge. That means you then lose control of the outcome, and could be spending a lot in legal fees fighting about your pet. In one case, the parties were able to agree on division of all of the other property (the house, the superannuation, etc) but they couldn’t agree on the dog. In that case, both parties were required to file lengthy affidavit evidence with the court and then the Judge had to decide who would retain the dog. Some of the things the Judge considered included who purchased the pet and when, if the dog was registered, who took the dog to the vet, who paid expenses for the dog and who had the dog in their possession post separation.  Ultimately, in that case, the dog was awarded to the Wife.

5. Things you can do to improve your chances of the pets staying with you

The best thing you can do to ensure the pets stay with you, is to include them in your prenup. However, if you don’t have a prenup, there are some other steps you can take that might help your case if you later have a dispute:

  • Keep evidence of you purchasing the pet (or having them prior to moving in with your partner);
  • Register the pet in your name;
  • Keep evidence of making payments for the pet (pet insurance, vet fees, pet sitters, medication, etc);
  • If you separate, do not leave the pets behind

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No one goes into a relationship planning to separate, but unfortunately separation is a reality for many. The pain of losing a relationship is difficult enough, let alone also losing your pet to your ex. If you are thinking about getting a pet with your partner, talk to them before you get the pet so you are both on the same page about what would happen if you separate.

Divorce and pets

Kasey Fox

Kasey Fox

Kasey Fox is a Family Lawyer and Law Firm Director at Farrar Gesini Dunn. She encourages her clients to reach an amicable resolution wherever possible and avoid going to Court.

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