Pet custody – what happens to your beloved animals during a separation

When a relationship ends, there is a lot to take stock of, and who gets to keep your pets is one of the decisions you will have to make. We’re here to assist you through the entire process and provide the information, support and advice you need.

Who gets to keep pets?

Who gets custody of the pets during separation will come down to a variety of factors, mostly the level of conflict between you and your partner and whether you can agree on who gets to keep them or if you want to do shared care.

Current law in Australia: the value of pets

Unfortunately, in Australia, the courts consider our fur babies as property and not family, and deal with who keeps them accordingly.

If you and your ex are in a dispute about who gets to keep the family pet, the family court will make the decision in a similar way as it would when retaining a vehicle or other property.

Pet custody and Australia’s Family Law System: There is no reference to animals in the Family Law Act 1975 or in the Family Court Act 1997 (WA)
Historically, previous cases have established the family pets as property, included in the property pool available for division between the parties
The court will consider the “market value” of the animal. This value is generally low unless you can show evidence of your pet being a pedigree show dog/cat.

Who gets to keep our “Furbaby”?

Just like with other property, legal ownership doesn’t necessarily determine who will legally retain ownership of the family pet.

When making this decision, commonly, the Family Court has considered which party:

  • purchased the animal
  • is the registered owner of the animal
  • has appropriate housing for the pet
  • can provide the most suitable accommodation for the animal
  • has made greater financial contributions to the acquisition, care and maintenance of the animal – including who has met the cost of vet appointments/surgeries
  • has paid for its food, grooming and other expenses
  • has made greater non-financial contributions to the care and maintenance of the animal. For example, who has fed the animal or taken it for walks?

Can we share custody of the pet?

If you want to share the custody of your family animal, you have various options available to you:

  1. Negotiate. This is a great and amicable way to establish a living arrangement that works best for your pet
  2. Enter a legally binding shared pet care agreement. This is a timetable system allowing both parties joint ownership. You can use this Shared Pet Care Agreement template to aid you in drawing up the agreement to look after your furry friend after separation
  3. Another helpful alternative is to prepare a binding financial agreement that covers this decision pre-separation or post-separation
  4. If negotiation and mediation haven’t helped you and your ex reach a legally enforceable agreement or any agreement at all, you can make an application for property orders which include your pet

When you are dealing with the breakdown of a relationship, losing your beloved pet as well can be the final straw. We can help. Explore our resources and helpful templates, or speak with a lawyer about your options.

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What happens to pets in a separation?

In Australia, they are considered property of the relationship and are not treated as if they were children.

Can we do shared care?

Yes, separating couples can agree to do pet shared-care. To help with this, prepare a timetable and agree on what pet-related costs will each be responsible for after you have agreed to joint ownership after separation. This should be part of your Financial Agreement or Consent/Court Orders.

How do you lose custody of a pet?

There is no such thing as “custody” of a pet, only ownership. You can lose ownership if a court order is made against you that your ex-spouse or de facto partner be the owner of the pet.