Who Keeps The Pet?
By Tanya Mount
Where you were married or in a de facto relationship, the Federal Circuit and Family Court (“the Court”) has jurisdiction to make orders regarding who gets ownership of pets following separation.
Where parties can reach agreement about who is to keep the pet, an order for ownership of the pet can be included in property settlement orders.
However, where parties cannot agree who is to keep the pet, the court can decide who gets ownership of the pet as part of property settlement.
Previously, the Court viewed pets strictly as property and did not consider whether there was any attachment to the pet or what was in the pet’s “best interests” when determining who should keep the pet.
When determining who would keep the pet, the Court would consider:-
- Who purchased the pet, whose name it was registered in with the council and whose name the microchip was registered to;
- Who paid for the purchase of the pet and associated expenses (including vet costs, food, insurance etc);
- Who cared for the pet (ie feeding, bathing, walking, taking to the vet etc).
Fast forward to June 2025 and the Court’s approach has changed due to the amendments to the Family Law Act 1975 (“the Act”) which came into effect on 10 June 2025.
Whilst the Court still view pets as “property”, the Court now also considers several factors when determining who should get ownership of the pet, including attachment by a party or child to the pet, family violence, and history or threatened cruelty or abuse by a party towards the pet.
The term now used for a family pet in the Act is “companion animal”.
A “companion animal” is defined in the Act as “an animal kept by the parties to a marriage or either of them, or the parties to a de facto relationship or either of them, primarily for the purpose of companionship”. A “companion animal” does not include:-
- An assistance animal within the meaning of the Disability Discrimination Act 1992;
- An animal kept as part of a business;
- An animal kept for agricultural purposes; or
- An animal kept for use in laboratory tests or experiments.
Due to the amendments to the Act regarding companion animals, section 79(6) of the Act provides the Court can make one of the following orders:-
- One party is to have ownership of the companion animal; or
- Ownership of the companion animal be transferred to another person who consents to the transfer of ownership; or
- The companion animal be sold.
The Court cannot make orders for shared ownership/care of pets.
When considering what order the Court should make in relation to companion animals, section 79(7) provides the Court is to take into account the following considerations (if relevant):-
- The circumstances in which the companion animal was acquired (ie gift, joint purchase, pre-relationship ownership);
- Who currently has ownership or possession of the companion animal;
- The extent to which each party cared for, and paid for the maintenance of, the companion animal;
- Any family violence to which one party has subjected or exposed the other party;
- Any history or actual or threatened cruelty or abuse by a party towards the companion animal;
- Any attachment by a party, or a child of a marriage, to the companion animal;
- The ability of each party to care for and maintain the companion animal in the future, without support or involvement from the other party;
- Any other fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account.