You and your partner have decided to add a new addition to the family, a cute four-legged fur-baby. After a year of hard labour and lots of love (and treats!), your little fur-baby has grown up. You have developed a strong emotional attachment to your pet, which you describe as a bond that cannot be broken. But another bond has broken down, and you have decided to end your marriage. At the divorce proceedings, both of you raise an important question: who gets to keep the pet?
Check out Divorce For Women: Your Legal Rights for more information.
Are Pets Property?
Most pet owners view their dog or cat as a member of the family. However in the eyes of the law, pets (also known as companion animals) are regarded as personal property just like furniture or a car. In fact, animals are explicitly defined as ‘goods’ under the Competition and Consumer Act 2010 (Cth). Although it sounds harsh, it is perhaps advantageous for people undergoing a divorce. Unlike children, the Family Court will not take into account the “best interests” of your beloved pet. Instead, the Family Court may assess the following in order to ascertain which party will retain ownership:
- Whose pet is it? The court may look at the name listed under the pet registration, or if the pet belonged to you or your partner before marriage or when the relationship started.
- Who cares for the pet? The court may ask who performs majority of the responsibilities in caring for the pet. For example, who takes the pet to the veterinarian? Who buys the pet food and/or supplies? Who feeds or walks it?
- Who has an appropriate lifestyle or housing for the pet? The court may look at which party can provide greater or better care, or a good environment suited for pet ownership.
In order to avoid any problems during or after a divorce, you and your partner should work out how you will both deal with the division of property beforehand. Because a pet is legally considered property, you use a Binding Financial Agreement (or BFA) as an effective shield to ensure your pet remains yours, no matter what happens in the future of your marriage.
What Is A Binding Financial Agreement?
Basically, a BFA is a binding contract that is made in accordance with the Family Law Act 1975 (Cth). It is an agreement entered between two or more people during or after separation that outlines how they will distribute or divide their property. Please note that a BAF can apply even in a de facto relationship. For example, if a disagreement arises the BAF will state in a clause whether or not the parties will share custody of a pet. If you and your partner have agreed on a BAF, it is recommended you contact a business lawyer who can help you draft an agreement that covers ownership, possession and care of your pet. Otherwise, after separation the court itself will divide all of your property on its own terms, including your pet who will be dealt with as part of the asset pool.
Be aware the law only specifies who gets to own the family pet. If you would like to enforce visitation rights, it may not be legally enforceable. Before you sign a BAF, read the agreement carefully and double check whether your interests are accounted for.
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