When the family dog is the bone of contention for separating couples

A custody dispute over pet ownership can potentially be a serious source of contention between separating couples. Disputes can even lead to extreme behaviour. In the UK, two recent examples demonstrate just how acrimonious such situations can become. In one case, a property developer was taken to Court by his ex-girlfriend, accused of posing as a dog walker to abduct her cockapoo. Even more disturbingly, a 70-year-old Austrian, Count Konrad Goess-Saurau, was found guilty of shooting dead his wife's German pointer, Herman, while she was away.

In Australia, if separating parties cannot settle amicably how a pet is to be dealt with, the Court will treat their pets as part of the property settlement. Pets are considered chattels within the meaning of property under the Family Law Act though there is no reference to pets in the Act.  As with all property matters, the Court is expected to make an order that is 'just and equitable'.

In making a determination, the Court may consider various factors in determining future ownership, such as who purchased the pet, who is the registered owner, who has cared for it and who has possession.

The first illustrated case of Downey & Beale is instructive in terms of some of the principles applied as to how pets are treated in family law matters.

Case Study: Downey & Beale (2017) FCCA 316

In this case, the husband and wife had reached an agreement on all the financial issues between them. The only bone of contention remaining between them was who was to have ownership of their dog. The husband had bought the dog and subsequently registered ownership albeit not until eight months after separating from his wife when he realised that she was going to assert a claim over the pet dog. The wife, who had initially selected the dog, claimed it was an engagement gift.

The dog lived with the wife at her parent's house. Although the husband subsequently moved into the property, the wife continued to pay for the dog's care. After separation, the dog remained with the wife.

The Court determined that the wife was the person with whom the dog was ordinarily kept and accordingly should be considered as the owner despite the husband's ownership claim.

The effect of separation on children and their pets

The case of Jarvis v Weston (2007) demonstrates a particular approach when children and their pets are involved. The 11- year- old child's parents had been separated for two years. They were in dispute as to where the child should live, which also brought into question where the pet dog, to whom the child was attached, should live.

The father argued that the Court did not have jurisdiction to make an order about the dog as the Court cannot distribute property to a third party that is not part of the proceedings. Nevertheless, the Court decided that the 'boy is attached to the dog'...and so the 'dog is to go with boy'.

The Court determined that the dog, which was technically owned by the father, was nevertheless to stay with the mother as she had been given primary custody of the child.

This decision demonstrates that the Court can, within reason, make such orders that it sees fit and in this scenario, the judge took the overriding consideration to be the relationship between the dog and child in determining where the dog should stay.

Can a separating couple not just share arrangements for their pet dog?

In October last year, a Spanish judge awarded joint custody of a dog belonging to a separated couple. The border collie, called Panda, was to alternate between living with each of its owners for a month at a time. Many might see this as a sensible compromise in a difficult situation. However, this option is not currently available in Australia. It is not possible to share custody of a pet dog, as demonstrated in Davenport & Davenport (No2)(2020).

In this case, an application for the shared custody of a dog raised a jurisdictional issue. The husband had applied to the Court for shared custody. While accepting the wife was the registered owner, he argued that he had made considerable financial contributions to the dog's upkeep and visits to the vet.

The Court considered it had no jurisdiction to make an order for shared custody. The judge commented that 'there is no provision under the Family Law Act and no specific legislation that deals with issues such as the "custody" of a pet ...that would empower the Court to make orders for shared custody of a pet'.

Income producing pets

Although family pets are considered to be property under the Family Law Act, it is not usually the case that a value can be placed upon the pet. In some cases, though, placing a value may be possible.

The case of Walmsley v Walmsley) (No3) (2009) concerned a property settlement that could not be completed without a determination on the ownership of the pet dog. Although the facts of the case were quite complex, ultimately, the Court decided to assign a value of $3000 for a dog used for breeding. The dog was to stay with the wife and an appropriate settlement adjustment made.

What does it mean?

Australian law still treats pets as property in family law proceedings. The pet's financial value is not considered unless they are income producing.

As has been seen, the Courts have taken various approaches in deciding which party is to have the ownership responsibility of a pet. Cases, such as those involving children, demonstrate that case law can bring flexibility to the statutory framework. The Court may use its discretion when it is deemed appropriate to acknowledge the relationship a child or other person has with their pet within a family law context.

Contact our Family Law Solicitors in Sydney, NSW

Szabo & Associates Solicitors can assist you with whatever your family law matter.  If you are experiencing difficulty in negotiating a property settlement, including possession of the family pet or any other family law matter, please call us on 02 9281 5088 or complete the online contact form.