Pet Custody: Who Keeps the Dog in the Divorce?
As outlined by Justice Tonkin in Davenport v Davenport (No. 2), the Family Law Act 1975 does not permit couples to share custody of a pet after separation:
The Court is aware that for many people pets are regarded as members of the family; however there is no provision under the Family Law Act and no specific legislation that deals with issues such as the “custody” of a pet whether that be a dog, cat, bird, lizard, fish or any of the wonderful creatures that we share the planet with that would empower a Court to make orders for shared custody of a pet.
As there is no provision for shared custody under the law, it can only be achieved by informal agreement. Some separated couples arrange this between themselves, but if that is not possible, then the question becomes: who keeps the dog in the divorce?
Justice Tonkin also addressed this question in Davenport:
“The authorities establish that a dog is regarded as…personal property.”[1]
As dogs are “personal property” under the Act, they may be the subject of property settlement negotiations following separation. If any property settlement agreement is reached, it must be formalised by one of the following documents:
an Application for Consent Orders; or
a Binding Financial Agreement.
However, if no agreement is reached during negotiations, ownership of a dog or cat can be one of the issues in dispute during property settlement proceedings in the Federal Circuit and Family Court of Australia. If the matter proceeds to trial, the Court has the power to determine who keeps a pet, often with regard to the following:[2]
who has possession of the pet;
the value of the pet, determined by reference to the purchase price or a formal valuation;
in whose name the Council registration and microchip is;
what contributions were made towards purchasing the pet, and towards paying for their upkeep, such as food and vet bills;
who contributed the most non-financially to the care of the dog, such as walking them, bathing them, and feeding them.
The Court may also consider a range of other factors in relation to a former couples’ specific circumstances, including whether one party is willing to “bid” for the pet.[3] However, the one factor they do not consider, is usually the most important to parties: emotional attachment.
As outlined in Grunseth & Wighton [2022] FedCFamC1A 132:
As much as it will pain pet lovers, animals are property and are to be treated as such. Questions of attachment are not relevant, and the Court is not, in effect, to undertake a parenting case in respect of them.
In light of the above, if you have a pet, you should ensure you:
register the microchip and Council registration in your sole name;
purchase the pet with your own money and pay the upkeep from your own funds, rather than a joint account;
take personal responsibility for as much care of the pet as possible; and
try to keep possession of your pet at separation. In practice, couples often cannot afford extended negotiations about who keeps a pet, or contested litigation.
For more information about how pets are dealt with during property settlement negotiations or Court proceedings, book an appointment with our experienced family law team today.
[1] Davenport & Davenport (No. 2) [2020] FCCA 2766, citing Benford & Benford [2012] FMCAfam 8 (24 January 2012); Downey & Beale [2017] FCCA 316 (2 February 2017).