Pets As Property

A pet is an adored companion for many people. A national survey in 2019 found more than 60% of dog and cat owners referred to their pet as a family member, and the term “fur baby” was added to both the Oxford English and Macquarie dictionaries in 2015. So it’s not surprising that custody of a pet is becoming a priority issue in family disputes before the courts.

However, there are no specific provisions in the Family Law Act 1975 that deal with pets; they are considered property and the court must deal with them in a property settlement in the same way as it deals with items such as furniture or computers. Unless the pet is a show animal, or generates income for the owner (such as an animal used for breeding), in property terms, it will generally be considered to have little value.

Under section 79(1) of the Act, the court has the power to make orders for the sale or transfer of property, which includes pets.

The custody process

Parties to a property settlement dispute are encouraged to resolve the issues of pet ownership before starting legal proceedings.

If the parties reach an agreement on pet custody, the arrangement can be formalised via a consent order. Section 44 of the Act states that for de facto couples, a consent order should be filed at least 2 years after the relationship breakdown, and for married couples, within one year of a divorce.

If an agreement cannot be reached, the matter can be taken to trial, where the court will consider factors such as:

• which party registered the pet;
• who bought the pet and for whom;
• which party is the main care-giver for the pet;
• which party can best afford to pay the ongoing costs of the pet;
• the extent of a party’s relationship with the pet; and
• the lifestyle of each party and whether adequate care can be given to the pet.

Most states have a Companion Animals Act or equivalent which provides for the transfer of registration of a pet to another party. If the pet is not registered, a declaration can be sought as to ownership, under s 78.

Cases

Case law reflects the complex judicial approach to the custody of pets, and the court’s discretion in determining the nature of relationships in the context of family law.

Jarvis v Weston [2007]

In a custody dispute over an 11-year-old child, a court ruled that the mother was to keep custody of the dog, despite the father owning it, because “the boy is attached to the dog” and so “the dog is to go with the boy”. Further evidence for the decision was given by the boy, who stated his father “does not take good care” of the dog and that all pets owned by his father in the past had died.

Downey v Beale [2017]

The wife sought to retain custody of the dog. The husband claimed that because he had paid for the dog, he was the legal owner and the dog should live with him. The wife claimed that she had chosen the dog, it was an engagement gift, that she was responsible for its upkeep, and that the dog lived with her before and after the couple lived together. Neither party placed a dollar value on the dog, with ownership sought solely on the basis of love and affection for it.

The court found the wife was the owner of the dog because although the husband was technically the owner, the wife as responsible for the care and protection of the dog. The husband’s registration of the dog during the property settlement was considered a contribution to the relationship rather than evidence of ownership.

Walmsley v Walmsley [2009]

Following separation, the husband gave away pets he owned with his wife and claimed they could not be retrieved. The wife requested the pets be returned to her. The court ordered a conference between the parties, with the husband to provide details of the advice he had received relating to the status of the pets and the wife to resolve the issue herself.

In re The Marriage of Jay E. Stewart and Joan Kaye Wilson (1984)

In this US case, an ex-wife sought reversal of a court decision that awarded custody to her ex-husband of the dog which he had given to her as a Christmas present. The court upheld the decision, after considering factors including that the dog accompanied the ex-husband to work, spent much of the day with him and remained with him when the couple separated.

Bennett v Bennett (1995)

In this US case, custody of a divorced couple’s dog was awarded to the ex-husband, and visitation rights to the ex-wife. She was allowed to access the dog every second weekend and every second Christmas. The ex-husband argued she should not have been granted visitation rights, given the dog was his property, and he succeeded in his appeal.

Since the two American cases above, the US states of Alaska and Illinois have introduced laws which mandate that courts consider the wellbeing of a pet in any custody dispute.

For advice about the custody of pets, or on any legal matter, please contact Armstrong Legal.