Going through separation is a very stressful time. Trying to sort out who will have custody of any family pets can make it even more stressful.
It is becoming more commonplace to treat our pets like “children” of the relationship. As a result, this issue is becoming more prevalent.
Whilst most couples deal with this through an informal verbal agreement, the Family Court of Western Australia can intervene if no agreement can be reached.
What will the Court do?
The Family Court treat pets as “property”, rather than “children”. Therefore, pets are treated like other assets, such as a car or furniture, in the context of property settlement proceedings.
As a result, the Court can make orders about who keeps a pet as part of property settlement proceedings after the breakdown of a marriage or de-facto relationship. However, the Court is less likely to make orders for a custody arrangement for the pets (which is commonplace for matters involving children).
In determining who keeps the family pet, the Court will use the same approach as other items of property. This includes (but is not limited to), looking at each party’s financial and non-financial contributions, along with future needs.
Legal ownership of the pet will not necessarily be conclusive evidence that the pet should stay with that party. Instead, the Court will look at a variety of matters including:
- Which party’s name the pet is registered with through the local council;
- Which party’s name the pet’s insurance policy is registered with;
- Who has spent more time with the pet;
- Who looked after the pet, including feeding and training;
- Who paid for the pet;
- Who paid for the pet’s expenses (including food, grooming, insurance etc); and
- Other matters relating to the pet’s care.
Quite often, legal fees involved will be significant. Hence, the more preferable option would be to try and sort out the arrangements with an ex-partner outside of the Court system.
What can you do?
Most separated couples will have a “verbal agreement” to deal with arrangements for the family pet before and after separation. However, issues can arise with these types of arrangements given that they are not legally binding.
If you can reach an agreement amicably with your ex-partner but want to ensure the agreement is legally binding, an Application for Consent Orders may be an option for you.
As a preventative measure, some couples will enter into a Binding Financial Agreement (BFA) before entering into a de facto relationship or getting married to deal with the issue of “who will keep the pet” upon a relationship breakdown. A BFA can also be entered into during or after the relationship.
During the relationship, you can take steps to ensure you are best placed to retain your pet upon a separation. For instance, you should ensure that you make financial and non-financial contributions to the family pet including, for instance, contributing to the purchase price, ensuring the registration is in your name, and expending time caring for your pet.
If you need advice in relation to this, please do not hesitate to contact us and one of our experienced solicitors can assist. You can reach us on (08) 6559 7480.