Continuing our series on pets and family law, this week we take a further look at the legal complexities of pets in family law disputes.
Our previous article with Family Law specialist Michael Tiyce highlighted how Pets are Being Used as Pawns in Family Law Disputes. In that piece, Michael highlighted how pets are often exploited as leverage in high-stakes family disputes, and how it’s the law that allows that to happen.
This week, we take a closer look at how Australian law treats pets as property and the growing push for reform to recognise pets as sentient beings in family law matters.
The outdated classification of pets in the Australian family law system
The idea of pets being treated as property can seem outdated in today’s society, where pets are often seen as integral members of the family.
But, under the Family Law Act 1975, that’s exactly how pets are categorised: as property.
This means they are treated no differently from items like furniture or cars in divorce or separation proceedings.
Family law specialist, Michael Tiyce, says the classification often leads to outcomes that fail to reflect the emotional attachment many Australians have with their pets.
“The law regards pets as property, which means that during property settlements, the court is more concerned about ownership and financial contributions rather than the welfare of the pet.”
Because the law sees pets as assets, their emotional role within the family is largely overlooked.
“In Australia, there are no specific provisions that deal with the welfare of pets in family law disputes,” explains Tiyce.
“As a result, pets can often be used as bargaining chips, with one party leveraging their emotional importance to negotiate more favourable terms in a settlement.”
This often leads to drawn-out and emotionally charged battles, which impact not only the separating couple but also the well-being of the pet.
Need for reform: why pets should be recognised as more than just assets
The existing legal framework does not account for the wellbeing of pets during a separation, a point Tiyce strongly advocates for reforming.
“There is a growing consensus that pets should be recognised not just as property, but as sentient beings with emotional needs. Legislative changes could introduce provisions that account for the well-being of pets in family law cases, much like how children’s welfare is considered.”
This gap in the law can lead to situations where pets are subject to stress and neglect as they are passed between parties, or worse, left behind altogether.
While there is an increasing awareness about animal welfare in Australian society, these changes have yet to be fully reflected in the legal system.
Some regions, like the Australian Capital Territory (ACT), have taken progressive steps to recognise animals as sentient beings under the Animal Welfare Act 2019, but these changes have not yet permeated family law.
Tiyce believes these reforms are crucial.
“A framework that takes into account the emotional connection between pets and their owners, as well as the impact of separation on the pet’s well-being, would be a huge step forward.”
He advocates for a legal system that mirrors the welfare considerations applied in child custody cases, which could lead to fairer outcomes for pets and their owners alike.
Who gets the pet? How the current system determines pet custody during separation
In the absence of formal legislation to protect pets’ welfare, the courts must use property law to decide which party retains the pet. Several factors may be considered, including who bought the pet, whose name the pet is registered under, and who has been responsible for the pet’s care.
Tiyce emphasises that “it’s often not about who loves the pet more, but who has contributed financially or legally.” For instance, if one party paid for the pet’s medical bills or has their name on the pet’s registration, this could influence the court’s decision. However, without clear guidelines prioritising the pet’s emotional and physical well-being, such decisions can often seem arbitrary.
An important exception is when children are involved. In some cases, courts have allowed pets to remain with children as they move between households, recognising the pet’s emotional significance to the child. However, this is not a widespread practice, and as Tiyce notes, “It really depends on the judge and the specific circumstances of the case.”
Tiyce believes Australia can learn from the progress being made in other countries.
“The international trend towards recognising pets as family members, not property, is encouraging,” he says.
“Australia is behind in this respect, but we have the opportunity to adopt similar reforms and prevent pets from becoming emotional pawns in legal battles.”
What needs to change?
Tiyce suggests several potential changes to improve the handling of pets in family law cases.
“Clear legal guidelines that take into account factors such as who has been the primary caregiver, the pet’s relationship with family members, and the overall impact of separation on the pet’s well-being would help ensure fairer outcomes,” he says.
He also advocates for involving animal welfare experts, such as veterinarians and animal behaviourists, in family law disputes to provide valuable insights into the pet’s best interests.
Finally, Michael believes an increase in public awareness of the legal treatment of pets is vital.
“Educational programs for legal professionals, pet owners, and the public could bridge the gap between current legal practices and societal attitudes towards pets,” he says.
“Engaging with animal welfare organisations and other stakeholders would also help drive necessary reforms.”