How family pets are dealt with under the different areas of the law

“Dogs are not our whole life, but they make our lives whole.”

Pets are often considered integral and important members of the family, but have you ever considered what might happen where de facto or married couples separate and can’t agree on who will retain ownership or possession of their beloved furry friend?

This article explores the factors the Court in family law matters will consider in determining ownership. If your case does not fall within the family law jurisdiction, there are alternative options available to resolve the dispute.

What will happen to my pet if I separate from my partner?

Whilst many of us would consider our “fur babies” to be a part of the family, the Federal Circuit and Family Court of Australia (the Family Law Court) regards pets as property and does not deal with them in the same manner as children. This means that pets will be part of the asset pool, treated the same way as furniture or motor vehicles for the purposes of a property settlement.

The Family Court has the power to make a property order which will determine who will take ownership of the pet.  An order made by the Court is binding and legally enforceable.

In determining how to deal with pets in a separation, the Courts will consider a number of factors, including the following (as affirmed in the Full Court decision of Grunseth & Wighton [2022] FedCFamC1A 132):

1. The value of the pet (usually determined by reference to the purchase price);
2. The legal ownership of the pet – in whose name the pet is registered both for the microchip and with the local Council;
3. The financial contributions made towards the acquisition (who paid the purchase price for the pet), conservation (who paid for food, vet bills, insurance, etc) and improvement of the pet (training classes); and
4. The non-financial contributions towards the acquisition, conservation and improvement of the pet (care overall including feeding, bathing, walking, who took the pet the vet, etc).

The Court may also consider:

1. What was the mutual intention at the time of purchase and at the time of separation regarding the ownership of the pet (even if not reflected in the legal registration);
2. The utility of the pet on each party (if it is a therapy pet, impact on mental health, work, social life, if there are other pets, etc);
3. Whether there are any children of the relationship who are attached to the family pet, in which case the pet may be ordered to remain living in the household where the children spend the most time. In the case of Jarvis & Weston [2007] FamCA 1339, the Court ultimately decided the dog was to remain with the mother on the basis that the child had a significant attachment to the dog and the mother was the child’s primary carer;
4. The capacity of each party to financially support the family pet;
5. The work and social commitments of each party; and
6. The home environment proposed for the pet and whether it is pet friendly.

What if I am not married or in a de facto relationship with someone and we have a dispute about a pet?

If you and the other party are not married or in de facto relationship as defined by the Family Law Act 1975 (Cth), then the family law jurisdiction does not apply to your case. More information about de facto relationships can be found here .

Parties who do not meet the requirements to enliven the family law jurisdiction may apply to the Victorian Civil and Administrative Tribunal (VCAT) for the division of joint property or alternatively by initiating a civil matter in the Magistrates’ Court of Victoria to determine the ownership of the pet.

VCAT claims for pet

There are limited cases reported within the VCAT jurisdiction in relation to the ownership of pets. The majority of cases in VCAT have dealt with dangerous dogs, residential tenancy matters and breeder disputes.

VCAT can hear applications in relation to the sale or division of co-owned land and goods under the Property Law Act 1958 (Vic) (PLA).  The PLA defines property as any thing in action, and any interest in real or personal property.  This may be an appropriate avenue to make an application in relation to the ownership of a pet which is co-owned by two parties.

The Civil Claims List hears small claims in relation to goods and services as well as consumer law.

VCAT can hear claims arising under the Domestic Animals Act 1994 (Vic), but only in relation to domestic animal businesses, restricted breed dogs and dangerous and menacing dogs.

General claims for pets

Ownership disputes can be heard in the Magistrates’ Court of Victoria (or the local Court of the relevant State or Territory). There is also very limited case law in relation to pet ownership, potentially owing to the significant cost and length of time to start court proceedings.

What if my pet was a gift?

It is very common for pets to be purchased as gifts for special occasions, but what constitutes a gift at law and who is considered to have ownership?  This will be relevant for VCAT and general claims for pets.

To provide a gift is to voluntarily give money or personal property without expecting or gaining any benefit in return.  Giving a gift requires both parties to consent, which is usually performed verbally by providing the gift, acceptance of the gift and taking no steps to return it.

In the case of Rowland v Stevenson [2005] NSWSC 325, a man’s stepfather gave him the keys to a yacht and said the words “you can have the boat”.  The father then had a change of heart and claimed he didn’t intend to hand over the yacht.  The Court held that it was a valid gift because the father demonstrated intention through his words and by handing over the keys, whilst the son verbally accepted.

In the case of Chow v Chang [2021] VMC 1 in the Magistrates’ Court of Victoria, Mr Chow had purchased a Pomeranian for Ms Chang as a birthday gift.  Once the parties separated, Mr Chow claimed that he was the legal owner of the dog because he paid for it.  The Magistrate considered various factors, including that the Council, pedigree and microchip registration documentation were in Ms Chang’s name and that Ms Chang reduced her working hours to become the primary carer of the Pomeranian.  Ultimately it was held that Ms Chang was to have ownership of the Pomeranian.

This means that purchasing a pet will not entitle you to legal ownership of it, if the pet has been gifted to another person.  In determining ownership of a gifted pet, the Court will consider various factors including whether the elements of a gift are fulfilled as well as who contributed to the daily care and maintenance of the pet.

Whether a pet has been gifted is a legal issue and expert advice is necessary.

What else can I do to resolve the issue?

The first step and most cost-effective option is to negotiate between the parties involved and come to a resolution with which all are satisfied.  This can be facilitated between the parties themselves or with the assistance of lawyers to negotiate on a party’s behalf.

If a resolution cannot be reached through negotiation, then mediation is the next proposed step to give you the chance to reach a negotiated settlement.  In mediation, an independent third party assists the parties to identify and assess options and facilitate negotiations in an attempt to come to an agreement and resolve the dispute.

If an agreement is not reached at mediation, then a party may consider applying to the relevant Tribunal or Court for a tribunal member or judge to decide the ownership of the pet. Orders will then be made which are binding on the parties.

If agreement is reached, then you can document and formalise your agreement as follows:

1. If the matter falls within the family law jurisdiction, the parties can enter into Consent Orders or a Financial Agreement which formalise the agreement regarding the division of property, including any pets; or
2. If the matter falls within the VCAT or Magistrates’ Court jurisdiction, the parties can enter into Court Orders or a Deed of Settlement, formalising the agreement reached with respect to the pet.

How we can help

If you would like to discuss your options when it comes to determining the ownership of a pet, please contact us for a 30-minute free consultation with one of our experienced lawyers in the Family & Relationship Law Team.

Similarly, if you find yourself caught up in a dispute in relation to gifted property (falling outside of the family law jurisdiction), our specialist Litigation and Dispute Resolution Team can offer specific expertise in the resolution of the dispute.