Pets to be considered more than just property in family law disputes

Australia Broadcast Center

2 days ago

When a relationship ends, you're sometimes faced with dividing possessions from the house down to the toaster.
And that includes any pets.
Eve Smith, a collaborative international family lawyer and pet custody expert, says in the eyes of the law, animals have long been "considered the same as a dining table and chairs, or car, or boat".
"It really came down to whose name the dog or cat was in: who bought the animal?"
But from June 10 the Family Law Amendment Act 2024 comes into effect across Australia and will provide a new framework for determining ownership of the family pet in property settlements.
"Now it's not only whose name the animal is in, but other factors are taken into account such as who walks the dog, feeds it, takes it to the vet, pays for medical expenses," says Ms Smith.
"And would the animal be better off with that party?"
The amendment also includes a significant change for victim-survivors of family violence, says Monique Dam.
She's the CEO of Lucy's Project, a national charity that aims to improve the safety of people and animals experiencing domestic and family violence.
"[The court will have to consider] whether a person has used family violence against the other person, inflicted cruelty or abuse towards the companion animal, and whether a person or child of the marriage is attached to the companion animal," says Ms Dam.
She says because perpetrators often harm or threaten to harm animals "to control the woman and children who love them", women may end up at risk while trying to protect their pets.
"Women make the difficult decision to live out of their cars with their children and animals, or delay leaving a violent partner [because they don't want to abandon the pet].
"It is a really positive shift that courts will now need to consider family violence and cruelty towards a companion animal when making decisions about who should own the animal."
Katy Barnett is a law professor at Melbourne University and hopes the changes will mean a "best interest for all approach", where the welfare of parties, any children, and the pet are all considered.
"Animals are sentient beings. And often people have a particular emotional attachment.
"You can't divide an animal up."
Disputes about pets in family law are commonly about dogs, explains Ms Smith, and sometimes arrangements might involve the pet passing between two homes.
She says the law changes means these arrangements will be analysed more closely.
"It might be great for the children, but it might be too demanding on the pet who might actually need some downtime at home with one parent," she says as an example.
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The court will also look at who can best take care of the animal.
"You need someone to be active with it, someone who will walk it, and feed it, that the pet isn't left at home all day," Ms Smith says.
Veterinary behaviour specialist Kersti Seksel says finances should also be considered.
"Like kids, pets come with illnesses that have to be paid for. And we don't have Medicare for pets."
Accommodation is another factor.
"If you're in a rental you may not be able to take a pet, or if you live in a 10-storey block of flats, is that suitable for the animal?"
Laws aside, sometimes knowing what is best for the animal requires trial and error between the parties, Dr Seksel says. Especially if "sharing custody".
So, where possible, if the situation is safe to do so, she recommends they "assess how the pet is coping, and be flexible in the arrangement".