Under Australian family law, pets are considered property. But for many people pets are more than property and often considered a member of the family. One of the hardest problems to solve at the end of a relationship or marriage can be who gets to keep the pet cat, dog, fish, turtle, axylotl or snake.
This may be able to be avoided at the start of the relationship or marriage with a legally enforceable agreement in place specifying who is to keep the pet. A “pre-nup” or in this instance a “pet-nup” or “pup-nup” if it is a dog may be advisable.
Binding Financial Agreements under the Family Law Act 1975, allow to agree at the start of or during the relationship or marriage on how assets are to be divided if there is a separation. One of the problems in enforcing a pre-nup after a long term relationship is that you are uncertain what the futures assets will be.
You could have a “pet-nup” (a binding financial agreement) limited to just one asset which simply specifies who is going to own a specified pet. Alternatively you could potentially say in the agreement that if a pet is purchased during the relationship/marriage then the person with proof of payment of purchase gets to own the pet.
It is important to remember that the law only specifies who gets to own a pet, the same way they would consider who gets to keep an asset, the law is not able to enforce "visitation" rights for pets.
If you do not enter into a “pet-nup” the Court has the power to make the orders with respect to property. This allows the Family Courts to make orders about who will have ownership and possession of a pet. In determining which party is to retain the pet the Court may have regard to the following:
- Which parties’ name the pet is registered in;
- Which party undertakes the majority of the responsibilities in the care of the pet; and
- Which party has appropriate housing for the pet.
A referendum was held in Switzerland in 2010 regarding a proposal by animal rights activists to appoint independent lawyers for pets as to time spent with each party representing the “best interests” of the pet. This proposal has not been adopted in Australia to date. To talk to our animal-friendly family lawyers, call us on 03 9614 7111 or send an email to firstname.lastname@example.org