Your pup or your kitty is part of your family, right? Together as a couple you chose your fur baby, named it, loved it and (if you’re anything like me) showered it with gifts and gourmet treats. But when your relationship fails, who gets your beloved fur-child? Here are some factors to consider in addressing a pet in a divorce proceeding.

The first thing to recognize is pets are not considered children at law. The provisions relating to ‘best interests’ as set out in the Family Law Act do not apply to little Fido or Fluffy.

‘Property’ under the law

Instead, your pet will simply fall within the realm of ‘property’ and be divided in accordance with the usual provisions of s79 of the Family Law Act. Here, the Court will look at such factors as when the pet was acquired, who acquired the asset, and who has a ‘need’ for the asset moving forward beyond the relationship. A family lawyer will be able to assist you to gain a better understanding of the considerations taken into account when dividing property per the Family Law Act.

Just like any other property, your beloved pet may be the subject of a clause within a Binding Financial Agreement (or BFA as they are more commonly known). A BFA is a binding contract entered into pursuant to specific provisions of the Family Law Act that sets out how the property of a marriage or relationship is to be divided between the parties in the event of the breakdown of the relationship. They can be entered into at any stage, being before, during or after the breakdown of a marriage or de facto relationship.

Usually, agreements regarding pets will be incorporated as an annexure and may address such things as with whom the pet will live, when the pet will spend time with the other party, who will bear the expenses of the pet including food, insurance and veterinary expenses, and what will happen if one of the parties move.

Such factors could also be written into a formal Deed; while not binding pursuant to the Binding Financial Agreement, this could still be enforced pursuant to general contractual law principals.

Conclusion

So, the simple answer is, there is no hard and fast rule as to who gets a pet in a divorce proceeding. It’s best to work with your former spouse to come to an agreement, which you may want formally incorporated into a document. A family lawyer will be able to assist you with that.

Emma Jervis
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