There are likely to be many things to be sorted out when a couple separates but one increasingly contentious area is who gets custody of the pets.
In recent years, more couples are arguing over this issue in Australia, lawyer Jane Libbis says.
The partner and founder of Umbrella Family Law attributes it in part to the pandemic, which saw a spike in pet ownership as well as an increasing number of relationships breakdowns.
“We’re finding that as more people separate, it’s becoming an issue to say, ‘well, which of us gets to keep the dog?'” Ms Libbis tells ABC RN’s Law Report.
While many resolve the issue themselves, sometimes it isn’t straight forward.
And if a dispute goes all the way to the courts in Australia, it’s likely that the judge will regard a pet in much the same way they would a piece of property because pets are treated as chattels under the Australian family law.
“It’s considered a piece of property in the same way that you might be dealing with your fridge, antique jewellery, your artwork,” Ms Libbis says.
“Currently we don’t at all think about what’s going to be in the best interest of the pet. We simply think about things like whose name is it registered in, who paid for it, and maybe who has the means to continue to pay for it into the future.”
Laws differ abroad
Overseas, pets are treated very differently, and the legal status of animals is shifting, particularly in Spain.
Earlier this year, Spain adopted new laws that required divorcing couples and courts to consider the welfare of their pet. This legislation recognized animals as sentient beings rather than being mother objects.
For example, in October 2021, a judge in Spain considered the best interests of a dog after a couple split up and decided that they would be awarded joint custody of the dog.
Melbourne University law professor, Katy Barnett, says it is part of a growing trend. The author of Guilty Pigs: The Weird and Wonderful History of Animal Law points to recent changes in the law in the Czech Republic, France, Austria, Germany, the Netherlands and Switzerland.
But a 2021 case demonstrated just how different the laws are in Australia.
“Essentially, it was a de facto couple where the man bought the Pomeranian dog Kobe as a gift for his then-partner,” Professor Barnett says.
But a dispute over the ownership of the dog ensued after the couple split up. When handing down their decision, the judge analyzed whether there was an intention to give the dog as a gift.
It was decided that the dog was a gift to the woman as it had been put in her name and so Kobe went to her.
“It just simply ‘Was there an intention to give that gift?’ So that’s how we treat it in Australia now.”
Jane Libbis says most cases are settled outside of court through negotiation or mediation.
For instance, she often sees pets traveling with the children of divorced parents.
Then there are all sorts of other shared arrangements.
“I’ve heard of somebody where the separated partners, one didn’t work, so they had the dog during the day. And then the dog went to the other parent in the evenings, because they were available then to spend time with it ,” she says.
She describes another arrangement where the separated spouses didn’t want to disclose their new addresses.
“So, they had a third party that would come and take the animal from one house to the other so their location remained a mystery, but the animal got to spend time with each pet parent.”
Unfortunately animals can be “weaponised” in acrimonious splits.
“I’ve also had a situation where a client was very, very tied to a rabbit, and the rabbit had been taken by his former spouse and … that was a huge source of contention,” she recalls.
“And sadly, she absolutely wouldn’t relinquish the animal. But … that’s an example of where animals can be very much used … as a bargaining chip.”
Ms Libbis also knows of situations among colleagues where people have brought in pet psychologists to offer their professional opinion on what would be best for the animal.
“But again, the courts aren’t yet formally dealing with it in that way,” she says.
It’s important to note that some states and territories in Australia are already taking steps to view pets as more than property.
The ACT Animal Welfare Act 2019 recognizes animals as sentient beings, although it hasn’t been raised in family law disputes in that state to date.
Victoria also looks set to change its Animal Welfare Act to include sentience provisions, Dr Barnett adds.
But, at present, no other state is actively considering recognizing animal sentience.
“It means that while you are bound by the Family Law Act to treat it as divisible property, you’ve got this other piece of legislation saying, yes, it’s property, but it’s sentient property,” she says.
“And certainly, I think it will be welcomed on the part of family lawyers, if there was a slightly more nuanced way of dealing with these kinds of disputes than simply who owns it at law.”
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