Fur babies are a part of the family. They attend brunch with us, have play dates, attend day care, the list goes on. But what happens if you separate? Who is the legal fur parent?

The Family Law Act 1975 does not contain any specific provisions for pets and/or the ownership of animals. Courts have shown reluctance to make Orders in respect of animals so parties are always encouraged to reach an agreement amongst themselves in relation to the care and welfare of the animal as well as the animals living arrangements.

In a fairly recent case of Gaynor & Tseh [2018] FamCA 164, the dog was registered in the name of the wife. The parties both asserted that they undertook various tasks for maintaining the dog and both parties disputed the others assertions. The husband commenced urgent proceedings in the Family Court seeking the return of the dog. The dog had been in the care of the wife for a significant period post separation and the wife put on extensive evidence about the care arrangements for the dog.

The Court declined to make any Orders, saying there was no logical reason as to why the Court should intervene. Accordingly, the dog remained in the care of the wife.

Animals, however, can be considered to be “property” so if parties are unable to reach an agreement, Orders may be made in relation to an animal as a part of your Family Law property settlement. In those circumstances, the Court may have regard to things like:

  1. Where is the pet going to live and does one party have more suitable accommodation for the pet than the other?
  2. Who primarily cared for the pet during the relationship? Such as who bathed, fed, walked and took the dog to the vet primarily?
  3. Who paid for the purchase of the pet and the expenses for the pet such as vet bills, food, training and toys?
  4. Is the pet registered in one party’s name?
  5. Are there children in the relationship that have an attachment to the animal and if so, should the animal stay with the parent who has primary care of the children?