Who keeps the dog?

By Sarah | November 8, 2019 | 0 Comment

When couples separate, there is often a division of the couples’ property, and arrangements made for whom the children live and spend time with. Pets, somewhat surprisingly, are treated as property pursuant to the Family Law Act 1975 (Cth) or Family Court Act 1997 (WA) (for de-facto couples in Western Australia). Consequently, the legislation does not explicitly provide for “shared custody” arrangements for pets, as it does for children. Pets can however be divvied up along with the other property owned by the couple.

A Negotiated Agreement

In the event of a relationship breakdown, it is best to try come to an arrangement with the other spouse as to who retains the pet, as well as how the remainder of the assets (and liabilities) are split between the couple. Should an agreement be reached, an application to the Family Court of Western Australia (“the Court”) can be made through a Form 11 Application for Consent Orders and a Minute of Consent Orders (collectively known as an “Application for Consent Orders”). An Application for Consent Orders can also include documenting parenting arrangements, such as who the children to a relationship live and spend time with. If an Application for Consent Orders is ‘granted’ by the Court you will receive court orders providing for who retains ownership of the pet and ultimately, gets to keep it on a permanent basis. If a couple is agreeable to ‘sharing’ the pet, this could theoretically be provided for, although it is important to consider the long-term ramifications of sharing a pet, particularly once individuals have re-partnered or moved on!

An Application for Consent Orders may not be suitable to all situations and circumstances, and also has a specific ‘limitation period’, therefore it is strongly recommended to seek legal advice as soon as possible should you consider pursuing this avenue.

Binding Financial Agreement

Fortunately, another alternative available to pet owners to is to enter a “pet nup”, also known as a Binding Financial Agreement (“BFA”) in Australia. BFA’, generally speaking, are the Australian equivalent of a “Pre-nuptial Agreement” or “Pre-nup”, as commonly referred to in American pop-culture. A BFA allows married or de-facto couples to document in writing how their property would be distributed should they separate or have already separated. A BFA can be entered into as a preventive safe measure to document what would happen to a pet in the event of a relationship breakdown, or alternatively, can also be drafted after a breakdown to document such agreement. There are no ‘limitation dates’ applicable to entering a BFA. As well as documenting who retains the pet, a BFA can also include how the remainder of a couples assets are to be split (including superannuation for married couples!) and in certain circumstances, can even provide for the financial maintenance of one spouse to another, known as ‘spousal maintenance’.

Legislation such as the Family Law Act 1975 (Cth) or Family Court Act 1997 (WA) (for de-facto couples in Western Australia) strictly govern the format and requirements of a BFA. The consequence of non-compliance with the legislation could result in a BFA being over turned before the Court. We do however note that unless one spouse seeks to ‘overturn’ a BFA, the BFA will not go before the Court, as BFA’s are private agreements entered into between spouses. Both spouses to a BFA must obtain independent legal advice in relation to the BFA prior to executing the BFA.

If you are considering entering a BFA, it is important to obtain legal advice as to whether it is appropriate for your specific circumstances.

Applying to the Court

Often times spouses cannot agree how their assets should be split upon separation. In such circumstances, it may be appropriate to commence proceedings in the Court seeking that orders be made in respect of the couple’s property, including as to how it is to be split on a final basis. It is not common for orders to be sought in relation to who retains ownership of a pet, however it could be done so under the legislation. We note that it would be unlikely that the Court would make orders for a pet to be ‘shared’, unless it could be agreed!

Progressing through the Court can become expensive quickly, therefore it is recommended significant consideration be given prior to commencing proceedings and that all other avenues be explored.

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The contents of this publication are not legal advice to anybody who receives it and should not be treated as legal advice. You should not take any action following reading this publication without legal advice concerning its application or relevance to your own circumstances.