03 Nov Pet Custody: How Does It Work?
Nectaria is an Associate Solicitor, practising primarily in family law matters, but also in conveyancing, Wills and Estates and Crime. Nectaria’s experience can help you understand how the law will apply to your individual situation. Nectaria has completed a Bachelor of Laws with a Bachelor of Arts majoring in Criminology and graduated from Macquarie University with second-class honours.
Who gets the fridge and who keeps the dishwasher might be easy enough to figure out, but what about pet custody?
This is a tough issue for many couples as they face making decisions about the division of property and custody of their children.
Many people have strong attachments to their pets and do not view the family dog as part of the furniture – more like part of the family. The law, however, sees the situation a little differently.
In Australian family law, pets come under property. Determining who gets pet custody is nowhere near the same as determining custody of children, which is viewed as one of the most important issues in divorce proceedings.
Some former couples choose to share their pet on, for example, a two weeks on, two weeks off basis. Others might find that one partner solely looking after the pet works best.
Pet custody can be decided in a verbal agreement between the two former spouses, although there are a few more formal options available.
Binding Financial Agreement
Although a person might not think about their dear old dog or cat as a piece of property, pets can be the subject of binding financial agreements.
Binding financial agreements set out the way a couple wants their assets to be divided in the event of a relationship breakdown.
This means such agreements can include arrangements for pet custody and provisions for the family pet, like how vet bills are paid and what happens when one person goes on holiday.
A consent order is a way to make agreements official after a divorce or de facto break-up.
It is a court order, but rather than going to court and having a judge determine the fairest and most equitable option, a consent order is made when the parties have worked out a solution between themselves.
If two people can decide on arrangements for pet custody, they can then apply for consent orders to formalise it.
However, it is important to check your eligibility before applying for consent orders. De facto couples must apply within two years of the breakdown of their relationship and married couples must apply within one year of their divorce being finalised.
Pet Custody Worldwide
Two American states have recently amended their family law legislation to take into consideration the welfare of animals when determining who the pet stays with and whether the pet is shared.
This gives beloved family pets a higher status than just household furniture.
According to surveys, 85 per cent of American pet owners view their pet as part of the family.
In January 2017, Alaska was the first state to take this into consideration. Rather than including pets in the distribution of property and assets, courts now take the animals’ welfare into greater consideration.
California has followed, with their new law set to start in January 2019.
Although these laws still recognise pets as being on a different level from children, issues like pet safety and wellbeing are now recognised as important.
Giving the courts greater authority hopefully stops pets from becoming a pawn in the dispute between two ex-spouses.
The Alaskan and Californian courts will consider points such as:
- Who mainly looks after the pet
- Who takes them to the vet
- Who usually gives the pet food and water
- Whether the pet is more attached to one owner
- Who can best provide them with safe and comfortable shelter
Pet custody, visitation and financial support can be determined by the court in these two American states. We’ll wait and see if Australia might follow.