Ever Wondered What Would Happen to Pets in a Divorce?

As lawyers (and away from law, as members of families who keep pets of our own), we understand that your pets are very important to you.

Over the years, we have fielded enquiries and been involved in cases where “who gets Buster or Buffy?” is a legitimate issue for determination.

In some cases, the issue is easily resolved by practical issues, including:-

1. Sometimes one of the members of a separating couple will be rehousing in an apartment or in accommodation at which the pet is unable to be housed;
2. Sometimes, the pet has such a bond with one spouse, the spouses agree that the other cannot handle or house the pet without difficulty; and
3. Sometimes the spouses agree that as the pet was acquired for the purposes of being companions to and educational (teaching responsibilities) for their children, the pet stays in the home at which the children of the relationship will primarily live, or, the pet may travel between the homes of the parents with the children. This sometimes assists in continuity for the children and is of comfort for them in transitioning between households.

In more difficult cases, a Court can be asked to decide the issue of who will retain the pets.

Whilst some people who value their pets as family members may find this approach quite legalistic, the pets are likely to be considered in two ways:

1. The first is where children of the relationship exist and are bonded with the pet, a Judge deciding parenting matters may think that the best interests of the children mandate an Order that the pets pass with the children between the households. If the parents are opposed to this (pets being conveyed from one home to the other), then the Judge may Order that the pet live in the home where the children primarily reside.
2. The second is where either there are no children or the children are not bonded with the pet so as the pet’s location does not impact them. In that event, the pet will be treated as an item of property. Whilst the pet may not have an intrinsic value unless it is a breeding animal, the sentimental value may be significant. If that is the case, the Judge will have to make a “just and equitable” decision.

There are no hard and fast rules and the likelihood of one outcome over another will vary from case to case depending upon the facts, however, it is foreseeable that a Judge will be guided by the following:-

1. Who initially bought or acquired the pet;
2. Who trained the pet in obedience or behavioural steps or in cases where the pet has required significant grooming, who has performed the grooming;
3. Who has met the veterinary fees and the costs of caring for the pet; and
4. Evidence from others concerning the bond the pet enjoys with one spouse or another or perhaps whether either spouse has shown the pet in competitions (eg dressage or dog shows).

Parties should bear in mind that the legal costs associated with agitating a legal dispute about who should retain the dog, are likely to range from between several thousand dollars at a minimum and into the tens of thousands of dollars in a property dispute matter.

As lawyers, sometimes it is easy to remind clients of the fable of King Solomon’s Wives who were poised to fight over a child, and to try and come to an agreement which may not be the client’s ideal outcome but which is workable and avoids significant legal costs.

In the Australian jurisdiction, I am reminded of the incidence of our long serving Brisbane-based Family Court Judge, Justice Bell, having to decide a sentimentality-based argument concerning an item of property.

In that case, the item of property was a much loved painting. The spouses could not decide who should retain it, so His Honour determined that the couple should have joint custody of the painting and that the parties should adopt a week-about possession pattern for the painting, requiring that each party drive to collect the painting for their week.

His Honour remarked afterwards at conferences and also on the occasion of his Valedictory, that he had in mind that the party who truly loved the painting would just continue to observe the arrangement, and ultimately the other, who he may have considered was less motivated by the love of the painting would soon give up.

His Honour was accurate in that regard and soon enough, the home of the painting was chosen by the attrition of the spouse who no longer valued the painting enough to transact the arduous shared arrangement.

It is foreseeable that this might happen with pets.

If the pets are breeding stock or acquired for breeding purposes intending a profit be made from them, then a valuation may be needed and that the party seeking to retain the pets may be required to meet a property adjustment in favour of the other party in return for keeping the pets for themselves.

Outcomes will differ from case to case, if such an issue genuinely presents, however, in the schematics of modern family law, it would highly unusual for such disputes to develop given the costs involved in fighting about such matters.

In closing, our advice is to certainly raise and discuss pets with your family lawyer, but be prepared for the question – whether it upsets you or not – being posed to you, “how important is this issue to you?” and being informed of the likely cost of agitating the issue before the Court.

Many thanks for reading….

The team at Evans & Company Family Lawyers