Fur Babies: Who gets the pets?

In the case of relationship breakdown modern technology has saved a lot of fights – you can easily download that rare ELO bootleg and you probably don’t need to dig in over the actual CD. Seinfeld, Friends and The Simpsons are always playing on some channel somewhere so you can probably let go of the boxsets.

Sofas you can buy again, paintings you can chose something that will bring happier memories.

From the Weber to the SUV, they all have a value that you can negotiate.

But what about the dog? Who gets Rex and who has to pay for him?

Estimates from the Australian Veterinarian Association predicted that last year there were more than 24 million pets in Australia, living in 62 per cent of Australian households. Dogs were the most popular pet with two in five households owning one, followed by cats who live in three of every 10 households.

Given that between 40 and 60 percent of relationships – married and de facto – breakdown, that’s a lot of pets in limbo.

Australian Bureau of Statistics figures from 2016 show that half of all divorces involve children. While there are specific and detailed provisions of the Family Law Act dealing with children and prioritising their best interests, it is a very different situation when it comes to pets.

Under Australian law pets are property and if your family law matter ends up in court that’s how they will get treated – the same way as the couch and the ELO bootleg.

Section 79 of the Family Law Act will come into play and the Court will look at factors such as when you got the pet, who got it, who had it microchipped and registered at the local council and who has a need for that particular “asset” moving forward. Then the court will put the pet on one side of the ledger.

The court will not consider the best interests of the pet, it will not take equal shared care as a starting point, and it probably won’t order a schedule of shared time.

But the world is changing and pets are showing up in breakdown disputes more regularly. So much so in the US that some States are changing their laws.

A recent survey of 1500 Family Lawyers in the US found a quarter of those surveyed reported seeing an increase in pet custody matters. The first US State to do so, Alaska introduced a law earlier this year which requires courts to take an animal’s wellbeing into consideration in the event of divorce. It further allows judges to award joint custody of pets.

In Australia any “shared custody” of pets tends to follow children – in cases where it is found that the children are emotionally attached to the pet and the pet will give the children extra security, courts here have ordered that the pet goes with the children between houses.

The difference is that it’s not about the dog’s welfare or best interests and can only apply because it is a factor in consideration of the children’s best interests.

Ironically US lawyers noted a pattern in new pet custody matters of disputes between partners with no children, or fewer than average. Owners had become particularly invested in the “Fur Baby” and given it a status in the family that the courts do not recognise.

And while it seems logical that the beloved family pet is not the same as the couch – and in fact there are laws in Australia making it illegal for us to treat animals cruelly, while you can do what you want to your couch – is it a good idea to legalise custody options for pets?

Ugly acrimonious battles over children are something no one wants to be part of, is it really sensible to extend that to pets? And if we do, is a dog the same as a guinea pig? In one reported case in the UK, a couple argued over a pet rabbit for so long, the rabbit died before the proceedings were resolved.

You will have a much better chance of negotiating an arrangement with the pets between you and your ex out of court. In a mediation or negotiation process your emotional investment in your pet can be taken into account. Where you are living post separation – in a bigger or smaller house – and how much you are working, can all be considered and negotiated in terms of the best interests of your pet. Arrangements can be negotiated that the court would simply not consider.

If your pets are your babies – you can treat them the same way after your relationship has broken down. Don’t let them become another pawn in the fight. You have it within your power to deal with it in practical terms – just remember if you chose the other way, the court won’t.

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