Pooches in property matters

Every now and again in family law property matters there is an issue of who gets to keep the pets is raised. It is probably not surprising given that pooches are such a fundamental part of many families

Pets play such an important role in many families and this results in strong emotional ties. When a relationship breaks down, a lot of couples are able to work out who gets the pets but what happens when no such agreement can be reached? What approach do the family law courts take?

Although often held in higher regard than other property, pets are not specifically dealt with in the Family Law Act – unlike children, there is no consideration of what is in a fur babies’ best interests. Instead, they fall within the general definition of property and can be dealt with in the division of the overall property pool.

There are of course instances where an animal is of significant value, those who are lucky enough to have an Instagram famous animal like Grumpyycat (who was worth an estimated 100 million before its 9 lives ran out) a greyhound dog, a racehorse, a purebred breeding dog, a prize bull, etc.) but otherwise, for the standard family pet, section 79(1) of the Family Law Act provides that with respect to the property of the parties, a Court can make any order it considers appropriate.

This means that a Court can order that one party retains the pet or that the pet be sold and the proceeds of sale divided into a particular way between the parties. As a fundamental goal of a property settlement is to end all financial relationships between parties, the option of having a shared care (& cost) arrangement is less likely - although this is not something that is wholly uncommon when parties are able agree to such an Order between themselves.

When deciding who should retain the pet, the Court’s discretion is very wide. Case law suggests that they may look at the relationship between the pet and the individual parties, the name of the party in which the pet is registered, the circumstances of caring (& paying) for the pet during the relationship and the practicalities of the ongoing care of the animal.

In a 2017 Federal Circuit Court decision of Downey & Beale [2017] FCCA 316, Judge Harman dismissed the Husband’s application for an Order to retain the parties’ dog and pursuant to section 78 of the Family Law Act 1975, His Honour ordered that the dog was the property of the Wife. This Order was made despite the dog being registered in the Husband’s name. His Honour favoured the Wife’s evidence that although the dog was paid for by the Husband it was a gift for the Wife and she had greatly contributed to the dog’s care.

As with all property settlements, the first approach and most desired way to attempt to reach a resolution is through negotiation and mediation but otherwise, the matter can appropriately be determined through the usual property law proceedings.

We are very experienced in all property matters. If you require any assistance with your property settlement you should not hesitate to contact us or book an appointment online.