The treatment of Pets in the Family Court is about to change

The treatment of Pets in the Family Court is about to change

When couples separate, disputes as to who will care for a beloved family pet often arise.

Given how close may of us are to our furry family members, it is no surprise that some of these disputes end up in the Family Court.

The Parliament of Australia has recently approved changes to the Family Law Act 1975 which include changes to the way the Family Court resolves disputes about pets.

What is the law currently?

The Family Law Act 1975 (which applies to married couples in Western Australia) does not contain any specific provisions which deal with pets.

While many may regard that their pets are similar to children, the Family Court of Western Australia has historically treated pets as items of property.

When determining arguments about the ownership of a pet, the Family Court has often had regard to:

• How the pet was purchased;
• Whether the pet is registered in a party’s name; and
• Whether a party has cared for the pet and met the costs of the pet, and can continue to do so.

In many cases, disputes about pets have been resolved by parties agreeing to share care of their pets after they separate, in the same way that separated parents might share care of their children. Currently, the Family Court can formalise these types of agreements by way of orders.

Change is coming

On 29 November 2024, the Family Law Amendment Bill 2024 was approved by both houses of the Parliament of Australia. The Bill contains important changes to the way the Family Court will determine disputes regarding pets.

The Bill introduces a new definition of ‘companion animals’, which are animals kept primarily for the purpose of companionship. The definition may not include working or farm animals.

In determining disputes about companion animals, the bill provides that the Family Court will be required to have regard to the following factors:

1. the circumstances in which the companion animal was acquired;
2. who has ownership or possession of the companion animal;
3. the extent to which each party cared for, and paid for the maintenance of, the companion animal;
4. any family violence to which one party has subjected or exposed the other party;
5. any history of actual or threatened cruelty or abuse by a party towards the companion animal;
6. any attachment by a party, or a child of the marriage, to the companion animal;
7. the demonstrated ability of each party to care for and maintain the companion animal in the future, without support or involvement from the other party; and
8. any other fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account.

The new amendments also provide that the Court can only make two types of orders in relation to companion animals – either one person can exclusively own the pet after separation, or the pet must be sold.

This is the case even if both parties want to share the care of a pet moving forward. The purpose of this restriction is set out in the explanatory memorandum of the bill, and is to ensure that Court orders finally determine the financial relationships between the parties and avoid further proceedings between them.

The legislation is expected to take effect in early 2025, and will apply to married couples in Western Australia.

Similar legislation to harmonise the law for de-facto couples in Western Australia may follow, as it has for previous amendments to the Family Law Act 1975.

Until that occurs, the treatment of pets in Western Australia may differ, depending on the pet was owned by a married or a defacto couple.

We’re Here to Help

Family law matters can be difficult and complex. If you require any assistance with a family law dispute, always contact a legal practitioner who will be able to help.

All of the above matters are matters that we can discuss with you at O’Sullivan Davies to ensure that both parties can ensure they move forward into their financial future with as much certainty as possible. More information about our services can be found at our About Us page here.

Disclaimer

This article is not legal advice and the views and comments are of a general nature only. This article is not to be relied upon in substitution for detailed legal advice.

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At O’Sullivan Davies, our experienced family lawyers can guide you through the process and ensure your rights are protected.

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