Who gets the
FAMILY PETS?
LAW
TAMLYN LEAHY
Family Lawyer
Families are usually very attached to
their pets and consider them to be a
member of the family, so in the case
of family separation, who gets the
family pet?
The issue of pet custody is not often
a dispute heard before the Courts,
however legal precedent has been
established even so with a number of
cases.
Under Australian Family Law, pets
are considered “chattels”. Case law
has established that the Courts treat
pets as property, and capable of being
included in the p roperty pool and up
for division between the parties. Pets
are treated in the same manner as
say furniture, motor vehicles and tools
and equipment and the Courts have
the requisite power to make orders
with respect to property including who
will have possession of a pet.
When it is unable to be decided
amongst the parties, the matter of
who gets the family pets is determined
by considering the relationship the
parties have to the pets. For example,
who primarily cared for the pet, who
paid for the vet care, who has the ability
to house the pet. In instances such as
the pet being a horse, there could be
a significant expense associated with
stabling the horse.
Does the pet have an attachment to
a particular spouse or the children of
the relationship? If the children are to
live with one parent for the majority of
the time, then it may be that the pet
remains with that spouse, in order to
maintain a sense of stability for the
children. Separation is a difficult time
for families and particularly children,
and taking the family pet away from a
child could be even more disruptive.
There has been a push overseas
recently, particularly driven by animal
rights activists, for the “best interests”
of pets to be considered by the Court.
A new law in Alaska in 2017 requires
the Court to take a pet’s wellbeing
into consideration. Australian experts
predict Australia is a long way off from
introducing similar laws.
It can be a very emotive issue as
to who will get the family pet at
separation. Perhaps one party will
feel very strongly about the issue and
it may be a foregone conclusion as to
who will be the best pet parent in the
circumstances. Ultimately the Court
encourages separating spouses to
mediate issues between them and to
reach an agreement and that includes
the pets.
When family relationships get
complicated evidence shows quite
clearly the benefits of having a pet on
our mental health. Pets bring us joy
and comfort and time out with your
favourite four-legged pal is a remedy
in itself!
Issue 22 |
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