Other than deciding on parenting arrangements for children, what happens to the family pet if spouses separate can be one of the most emotional and difficult matters to sort out.

Unfortunately, while you might call Mr Twinkles your fur baby and treat him accordingly, the Courts are going to take an approach that many people don’t particularly appreciate when it comes to deciding who gets to look after Mr Twinkles after your separation is finalised.

The General Approach to Pets in Separation

Many people are surprised to learn that there are no specific rules about pets in the legislation that deals with separating spouses.

In particular, pets are not treated by the Courts in the same way as children.

Instead (and this is the part many people don’t like) pets are essentially treated the same way as property. So what happens to Mr Twinkles is going to be looked at from a very similar perspective as what happens to the house, the couch, and the precious family heirloom that both spouses would prefer to keep.

So while most people feel a much stronger emotional attachment to their pets than many other things, from a purely legal perspective the outcomes for your pet/s will be listed alongside other household objects.

What about Mediation and Pets?

Of course the fact that the Court is going to look at your pet from the “property” perspective, doesn’t necessarily mean that you and your ex are going to do so.

Because of this, when preparing for mediation if you or your ex feel strongly about keeping (or not keeping) one of more of the pets from your relationship, then that’s an important factor to discuss in detail with your family lawyers as you prepare.

You might find that from a negotiation perspective the value that a pet has to you or your ex could play an important role is being able to negotiate a resolution rather than proceed to full blown litigation.

What’s Relevant to Determining who a Pet should Live With?

So, much like any other property, in theory the Court can order that Mr Twinkles stays with you, stays with your ex, or is to be sold and the proceeds distributed between you.

In practice and most normal circumstances, it’s more likely that one of you will get to keep the pet rather than it be sold.

As you will expect, the Court is going to consider all of the relevant circumstances, such as:

1. Did one spouse bring the pet into the relationship?
2. Who purchased the pet?
3. Does one person pay for the pet’s upkeep?
4. Does one person care for the pet more than the other?
5. After the separation is finalised, does one person have more suitable accommodation for the pet?
6. Who has the pet stayed for since you have been separated?
7. Are there financial considerations for the pet’s ongoing expenses and upkeep?
8. Is there evidence to demonstrate a stronger emotional bond between the pet and one person rather than the other (the key word here being “evidence”)?
9. If the pet is a show animal, does one person have a relevant membership or licence that the other does not?

Of course these are just examples, and the Court will consider any relevant evidence in determining what it considers to be the fair outcome.

Are Pets Really Property?

For most people, pets aren’t just another type of property.

But, to the Court in determining a family law dispute that is the category they will fall into.

We encourage all separating parties to try and resolve any differences about pets through negotiation or mediation. But if that fails, then the final decision will be made by the Court as part of any property orders made to finalise the separation.

If you need help resolving any issues you are facing in your separation don’t hesitate to reach out.