Navigating pet custody in divorce: what you need to know

Following on from our article on including pets in a will, we now take a look at the often-contentious issue of pet custody in divorce.

Estimated reading time: 1 minute

Updated 2 December 2024

As pet ownership rises across Australia, many pet owners are finding that the law hasn’t kept pace with their expectations.

Separation is a challenging time, not just for couples but also for family members, including beloved pets.

But, under the current legal framework, pets are still treated as property, a status that fails to recognise their emotional significance within a family.

Which makes their post-separation care and custody a significant issue that can cause additional stress and worry for individuals going through a separation.

Family law specialist Michael Tiyce is helping Animal Friendly Life in our latest series on pets and the law. Michael shares his advice – and the legal changes he says are much needed – in the below guide to help you navigate pet custody after a breakup.

Understanding the legal framework of pets in divorce

In Australia, pets are legally considered property. And while some states are beginning to consider the pet’s wellbeing as part of divorce proceedings, ultimately, they are treated similarly to other assets, such as furniture or vehicles.

This means that, technically, courts view pets as divisible property. However, the emotional bond between pets and their owners complicates this simplistic legal view, prompting some courts to consider the pet’s best interests.

Family lawyer Michael Tiyce argues that the law is letting down both pets and their owners by not addressing their unique role in family life.

“In Australia, pets are primarily viewed as property under the Family Law Act 1975,” says Michael.

“While this classification works within the bounds of property law, it falls short of acknowledging the emotional bonds and welfare needs that pets represent in most families.

“This legal gap can lead to unfair outcomes in family disputes.”

The emotional value of pets in family disputes

The idea of pets being treated as property can seem outdated in today’s society, where pets are often seen as integral members of the family.

Yet, in family law disputes, the pet’s wellbeing and emotional attachment to his or her owner are rarely considered.

This results in the beloved family pets being treated no differently than household furniture causing further emotional distress to those going through family law disputes.

“Pets often play a significant emotional role, especially in families with children,” Michael explains.

“But the law doesn’t reflect this reality.

“It’s not just about who bought the pet or whose name is on the vet bills; there are deeper emotional connections at play, and these need to be considered in legal disputes.”

The current property-based framework also complicates decisions on caregiving, making it challenging to determine who should have custody of the pet after a separation.

Without guidelines that take the pet’s best interests into account, many families are left in limbo.

Michael has previously told Animal Friendly Life that he strongly believes that pets should be recognised as sentient beings with emotional and welfare needs.

“We need legislative changes that consider the wellbeing of pets in family law cases, similar to how children’s welfare is considered,” he suggests.

This could involve guidelines that take into account factors such as who has been the pet’s primary caregiver, the pet’s relationship with other family members, and the impact of separation on the animal’s welfare.

These factors could help courts make more informed decisions, ensuring fairer outcomes for all parties involved, people and pets.

“There’s growing awareness that pets aren’t just property—they’re part of the family,” he says.

“Other countries have started to move in this direction, and it’s time Australia followed suit.”

Bridging the gap between law and society

While there has recently been some progress in acknowledging pets’ roles in family dynamics, Australian law is still catching up.

“There’s a disconnect between how society views pets and how the legal system treats them,” says Michael.

 “This gap can lead to unfair or emotionally distressing outcomes for families and their pets.”

Michael also advocates for greater education and awareness among legal professionals and the public about the role pets play in family law cases.

“Engaging with animal welfare organisations, veterinarians, and psychologists could help courts make more compassionate, informed decisions,” he suggests.

Additionally, creating more specific shelters for pets of people escaping domestic violence, would provide much-needed support for vulnerable pet owners.

“Ultimately, we need to make sure that pets are given the consideration they deserve in family law cases.

“They are more than just property, and the law needs to reflect that.”

Do you need legal advice on pet custody? The below guide outlines everything you need to know

To avoid the emotional and financial strain of court proceedings, it’s often best to reach an agreement out of court. But while many couples are able to resolve pet custody arrangements away from the court, some aren’t able to, and that’s when seeking legal advice is crucial.

A lawyer can help you understand your rights, draft agreements, and represent you in court if necessary. They can also guide you through state-specific laws that may impact the outcome of your case.

While pet custody disputes can be emotionally draining, having the proper legal knowledge and understanding of the landscape will help make the process as painless as possible. For everyone involved.

Factors taken into consideration by the court during a pet custody dispute

When a court is asked to decide on pet custody, several factors are typically considered:

1. Primary caregiver: The court may look at who has been the primary caregiver. This includes who feeds, walks, and takes the pet to the vet.
   
2. Living arrangements: The suitability of each party’s living situation is important. A safe and spacious environment is ideal for a pet’s well-being.
   
3. Financial stability: The ability to financially support the pet’s needs, such as food, medical care, and other expenses, can influence the court’s decision.
   
4. Children’s wellbeing: If children are involved, the court may consider the impact of the pet’s custody on them, especially if they have a strong bond with the pet.

Putting your pet’s best interests first

While it’s natural to focus on personal desires during a dispute, prioritising the pet’s wellbeing is crucial.

The process itself of the separation is likely to cause your pet stress and sadness, so the last thing you want to do is add further pain to the process for them.

So, whether you are able to reach an agreement yourselves or you need the help of a court to resolve your pet custody dispute, it’s important your pet remains in a consistent routine throughout.

These three factors should remain consistent for your pet, and be your priority for them, throughout the divorce process.

• Routine: Maintaining a consistent routine can help reduce stress for the pet during this transitional period.
  
• Health: Ensure that the pet continues to receive regular veterinary care and proper nutrition.
  
• Emotional needs: Pets can sense changes in their environment. Providing them with love and attention can help them adjust.

If you or someone you know is going through a pet custody, we hope this article can offer some assistance to you.

For more legal information about pet custody head to the Australian Family Lawyers website.

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