More than property: Recognising pets in Family Law

Navigating the new legal landscape with pets and separation

One of the first family law private mediations I ever represented a client in included lengthy and emotional negotiations regarding the arrangements for a pet cow. Yes, I said cow.

It was an eye-opening lesson to a newish lawyer as to how important a pet could be in parties trying to reach an agreement about the division of their property.  

Under Australian Family Law, the court has had to grapple with no clear legislation regarding the power of Courts to adjudicate when a separating couple can’t reach agreement for the arrangements for the pet that they had shared during the relationship. Are pets property under Australian family law? Should the principles that apply to arrangements for children apply to arrangements for pets? Can there be shared “custody” arrangements? Is the test ownership of the “the best interests” of the pet?  

The Court has considered pets to be property but the intersection of arrangements for children have influenced the court outcome in some published decisions.

Changes to the Family Law Act

Changes to the Family Law Act due to commence on 11 June 2025 will bring more certainty to the question of pets for separating parties with the changes creating a specific category of property of “companion animals” setting out the considerations for the Court when making decisions about such pets.  

Under this new law a companion animal is defined “an animal kept by the parties or either of them, primarily for the purpose of companionship but does not include an assistance animal within the meaning of the Disability Discrimination Act, an animal kept as part of a business, an animal kept for agricultural purposes or and animal kept for use in laboratory tests or experiments.”  

Factors the Court will consider

These amendments to the Family Law legislation sets out that in considering the arrangements for such a companion animal, the Court is to take into consideration: 

• The circumstances in which the companion animal was acquired

• Who has ownership or possession of the companion animal

• The extent to which each party cared for, and paid for the maintenance of, the companion animal

• Any family violence to which one party has subjected or exposed the other party

• Any history of actual or threatened cruelty or abuse by a party towards the companion animal

• Any attachment by a party, or a child of the marriage to the companion animal  

• The demonstrated ability of each party to care for and maintain the companion animal in the future, without support or involvement from the other party  

• Any other fact or circumstance, which in the opinion of the court, the justice of the case requires to be taken into account  

What orders can the Court make?

These new provisions will apply to cases that have not concluded in the court on 11 June 2025, which means the court can’t make orders regarding these matters yet, but these issues will start to become relevant in negotiations now. 

The scope of orders which can be made under the new provisions do not allow a court to make orders for the shared ownership of a pet, but the court can make a final or interim order: 

• That only one party to the marriage, or only one person who has been joined as a party to the proceedings is to have ownership of the companion animal  

• That the companion animal be transferred to another person who has consented to the consented to the transfer or  

• That the companion animal be sold

The future of pets in family law

I can see there will be a great temptation for judges to encourage the parties to reach agreement regarding a pet as the alternative is an order for it to be sold or transferred to an animal welfare service. Having previously had some involvement with an animal rehoming service, I can imagine those organisations will now be getting prepared for stepping up in family law proceedings if required.  

It shall be interesting to see whether these changes see pets becoming an issue in property settlements more with this provision in the legislation and the types of evidence that will be required in such matters. There’s certainly a number of elements to any potential dispute – imagine the considerations of whether that pet cow is a companion animal, or an animal kept for agricultural purposes!