For most households having a pet join the family is an exciting time, but what happens during separation or divorce? Unfortunately, there is no specific legislation for dealing with pets in family law. If there is a dispute over ownership of a pet, the pet is simply treated as property, and is seen in the same manner as other personal assets such as furniture, devices etc. So what can be done to protect your pets during these difficult times, and who gets ownership in the end? Here’s three options.
1. Negotiate options with all parties
As with many aspects of separation, discussing options with your former partner is always the best first step, where possible. If you’re able to, have an open conversation with them about your pets and negotiate options. You can also discuss your pets when undergoing mediation or family dispute resolution services.
Things you might like to consider include:
- Who is best able to care for the pet (considering finances, living arrangements etc)?
- Who the pet is most attached to, and which person(s) are attached to the pet?
- The circumstances surrounding coming into ownership of the pet e.g. was the pet a gift for a certain family member? Did you buy the pet together or separately?
- Any attachment children may have to the pet?
2. Ask your solicitor to include provisions about pet ownership in a consent order or financial agreement
While negotiations with your previous partner are often the best way to decide pet ownership, it’s important to note that any agreements decided between parties are not legally enforceable. If you instead wish to create a legally binding agreement, you may include a clause about pet ownership in the terms of consent orders or a financial agreement, being formal documents setting out the distribution of assets..
For both consent orders and binding financial agreements, both parties need to sign the document and agree to the terms. Once signed by both parties, proposed consent orders are then sent to the Family Court for a Registrar to review. By contrast, a Financial Agreement is drafted by a solicitor, but is not filed with the court. There are additional requirements for a financial agreement to take effect. When drafted correctly, both forms of document will help put a legal agreement in place for your pet – provided both parties can come to an agreement.
3. Apply for a Property Order
If you are unable to come to an agreement with your former partner regarding ownership of your pet(s) and property matters, you could seek orders with respect to pet ownership when filing an application to the court seeking a property settlement. An application for property settlement must be made within one year of divorce for married couples, or within two years of separation for de facto partners. If you need to make an application after such times, you’ll need special permission from the court to do so.
When seeking property orders, parties need to file a financial statement listing all of their assets (including superannuation) and liabilities which they wish to retain. You would need to specifically seek an order regarding pet ownership. While seeking property orders may be your only option if your previous partner will not negotiate, they can be more complicated and time consuming than other avenues, so it’s in your best interest to attempt mediation prior to applying for a property orders.
Negotiating the living arrangements and ownership of a pet after separation can be really difficult, especially if children are also involved. If you require legal advice or assistance negotiating pet ownership, please be sure to contact us to discuss your needs today.