KEY TAKE OUTS:
- In the event of separation, it is important to think about what happens to your furry friends.
- When you separate, the pets will generally go to one person and that person is under no obligation to allow the other party to see the pet.
- Pets can be included in legal arrangements prior to a relationship or at the demise of a relationship.
- When purchasing a pet whilst in a relationship, it is wise to discuss who would retain the pet in the event you should separate.
Humankind’s best friend, what happens to the beloved family animal when a relationship breaks down. Unfortunately, there are no pet custody arrangements in Australia. When you separate, the pets will generally go to one person and that person is under no obligation to allow the other party to see the pet. If there are children of the relationship, the Court will typically make an order for the pet(s) to live with the parent who has majority care of the children. This is due to the bond between children and pets and the comfort animals can provide to children.
Pets can be included in Binding Financial Agreement’s as property – the purpose of a Binding Financial Agreement is to set out how property is divided in the event of separation. A pet can be included in this agreement when they are treated as property and it can be listed who gets the pet or who gets which pet when you separate.
Alternatively, if no there is no Binding Financial Agreement in place, you can put your pets in your consent orders when you separate. Consent orders allow couples to divide their property when they have separated. Your pet should be considered and placed in these orders to ensure there is no misunderstanding regarding who will keep the pet. In the event that you and your partner cannot come to a decision about who keeps the pet(s), the decision may be made by a Judge. This means you lose control of the outcome. Further to this, it is ideal to come to an agreement over ownership of the pet as negotiating over this fact can create a lot of expenses in the form of legal fees.
If it comes to the point of a Judge deciding which party retains the pet, some of the aspects that may be considered include:
- Who purchased the pet;
- When the pet was purchased;
- Who took the pet to the vet;
- Who possessed the pet during the separation; and
- Who paid the majority of the expenses relating to the pet.
In the event you separate and wish to keep your pet, ensure you keep evidence of you purchasing the pet, register the pet in your name, take the pets with you when you separate and ensure you keep evidence of the payments you made for the care of the pet such as vet fees, medication, etc.
When purchasing a pet whilst in a relationship, it is wise to discuss who would retain the pet in the event you should separate. No one goes into a relationship with the goal to separate. Unfortunately, separation is sometimes the reality. The pain of losing a relationship is hard enough without also losing your pet to your ex.
Although pets can be listed as an asset of the relationship, they are not generally given a monetary value. In a decision in Downey v Beale, Judge Harman noted, “one would hope, in this neoliberal world that we have not yet come to the point where even love and affection are commoditised.” Monetary value is generally only attributed to a pet in the event the pet is capable of producing an income, such as racehorses.
Furry friends are extremely important to most people, when entering into a relationship or leaving one, take great care to protect your right to your fur baby.
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ABOUT LUISA GAETANI:
Luisa is a Senior Associate at Coutts Lawyers & Conveyancers and head of our Family and Criminal Law divisions. Luisa has practiced solely in the areas of criminal and family law. It is her sensitive yet pragmatic approach that has allowed her to develop a strong rapport and build trusting relationships with her clients. Should a client’s matter proceed to court, Luisa has the skillset and experience to assist her clients through this process and where required, will draw upon her network of barristers to further benefit her client’s outcomes.
This blog is merely general and non specific information on the subject matter and is not and should not be considered or relied on as legal advice. Coutts is not responsible for any cost, expense, loss or liability whatsoever in relation to this blog, including all or any reliance on this blog or use or application of this blog by you.