What happens to pets in a separation?

There's no specific legislation for dealing with pets in family law. (iStock)

For most households having a pet join the family is an exciting time, but what happens during separation? Unfortunately, says Lucy Padula, accredited family law specialist at Anderson Family Lawyers, there’s no specific legislation in family law for dealing with pets.

“If there is a dispute over ownership of a pet,” Ms Padula says, “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? She offers three options:

1. Negotiate options with all parties

“As with many aspects of separation, discussing options with a former partner is always the best first step, where possible. If able to, have an open conversation with them about pets and negotiate options. Pets can also be discussed when undergoing mediation or family dispute resolution services.”

Considerations suggested by Ms Padula include:

Who is best able to care for the pet (considering finances, living arrangements etc)?

• Who is the pet most attached to?

Was the pet a gift for a certain family member? Was the pet purchased together or separately?

Do any children have an attachment to the pet?

2. Consent order or financial agreement

“If parties wish to create a legally binding agreement, it can include a clause about pet ownership in the terms of consent orders or a financial agreement.

“Both parties need to sign the document and agree to the terms, which is 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.”

3. Apply for a Property Order

Orders can be sought with respect to pet ownership when filing an application to the court seeking a property settlement – which must be made within one year of divorce for married couples, or within two years of separation for de facto partners. Special permission from the court is needed otherwise.

“People would need to specifically seek an order regarding pet ownership. This may be the only option if the previous partner won’t negotiate, but it’s in a person’s best interests to first attempt mediation to avoid complications.”

Anderson Family Lawyers, 
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