Paula Phelan is a Family Lawyer with Specialist Accreditation in this area from the Queensland Law Society. She has been a lawyer for 22 years and is the director of Phelan Family Law, a Rockhampton legal firm specialising in Family Law only.
Many families have pets and more often than not the relationship with them is strong. This is particularly the case when there is young children involved. The attachment to ‘Fluffy’ or ‘Major’ grows to a point where they are in fact an integral part of the family.
The question of who gets the pet in the event of a relationship breakdown can be a difficult one. Although in most cases the dollar value of the animal is not high, the level of emotional attachment usually is.
Under Australian family law, pets are considered ‘chattels’. This means that they are a personal possession and regarded as an item of property.
As such, they are capable of being included in the property pool as an asset when couples separate. The court can decide who is to receive the pet in the same manner as if they were dealing with furniture or the family cars.
The question of who is to receive the pet if there is no agreement is determined by looking at the relationship each party has with the animal.
Does the pet have a particularly strong connection with one party as opposed to the other?
Who took responsibility for the pet’s wellbeing, health and upkeep during the relationship and after separation?
Often children will have a strong connection with the family pet, particularly if it has been a part of their life from early childhood.
To ensure minimal disruption, the court may decide that the pet will stay with the parent that the children will spend the majority of their time with.
In a case of Downey v Beck, the parties had negotiated the settlement of their property disputes except for one item, the ownership of the dog.
The wife sought an order that the husband transfer registration of the dog to herself.
The court held there was no dispute that the purchase price was paid by the husband, but this alone did not determine ownership.
During the marriage, the dog lived with both parties and lived soley with the wife following separation.
During that period, the wife alone paid for the upkeep of the dog including all veterinary bills.
The husband registered the dog in his name 8 months after separation and after the wife had signed an affidavit asserting ownership of the animal.
The wife also gave evidence at the court hearing that regardless of who paid for the dog, it was purchased for her as a gift.
The court decided that the wife was the owner of the dog, had possession of the dog and had contributed to the maintenance and upkeep of the animal.