Opinion
Who gets the dog when you file for divorce? In Australia, it’s complicated
By Jane Libbis
A few years ago, one of my clients returned home after a scheduled Family Court hearing to find that her dog was gone. Later, she learnt that her former partner had used the opportunity of her being at court to remove the much-loved pet from their former family home.
Though she had raised the dog since it was a puppy and been its primary carer, her former partner’s name was listed on the registration form and the microchip. So, the court was powerless to order the return of the dog. She never saw it again.
Pets are increasingly being used as a tool for negotiation in separations and divorces. Credit: iStock
Having been a family lawyer for 25 years, I’ve witnessed this scenario – and variations of it – play out too many times. Men and women have used family dogs, cats and even once a rabbit as leverage in messy and painful separations.
Relationships are complex, and few professions see this more closely than those involved in family law. Perceptions of fairness can colour decision-making, and people looking for agency, or seeking to assuage their hurt, can often convince themselves that the ends justify the means of their behaviour.
But as Australia’s birth rate declines, and research shows many suburbs now have more pet dogs than children, it has become increasingly common for ex-partners to argue over pets at the end of their relationship.
More concerning, a recent report from the Australian Institute of Family Studies shows that fear for the safety of family pets can prevent or delay victims of family violence from leaving perpetrators – or be the reason they go back.
Today, it’s generally accepted that pets are an integral part of many Australian families. Few people would fail to understand the term “fur baby”, and when a beloved family pet dies, most people understand the experience and show genuine compassion because they too have been there, or know they will be there one day. But while things may have changed socially, the treatment of pets under family law has unfortunately stayed much the same.
Until recently under federal family law, there were no provisions allowing joint custody of a pet. Instead, pets were considered property that you either owned or you didn’t. When it came time to divide assets, therefore, the question of who owns your furry friend ultimately came down to who filled out the registration papers.
Thankfully, that’s about to change. Recognising this as a growing issue, federal Attorney-General Mark Dreyfus introduced proposed legislative changes earlier this year that could resolve such disputes in a fairer manner – for woman, man and beast. In November, the bill was passed, with the laws set to come into effect in May 2025.
Although the majority of the changes in the Family Law Amendment Bill 2024 are, rightly, focused on human victims of family violence, there are now also key sections that will improve how courts resolve fights over Fido and Fifi.
While laws in North American and European countries already recognise that pets are not property, the changes put forward by the federal government here are yet to go that far.
However, they do mean that our courts will be better able to consider the nuances that make caring for a pet different to owning a house, a car or sharing an investment portfolio, for example. At the very least, the changes are a step forward that recognises these animals as living things with emotions that deserve more than being handed off to one person or another.
Such nuances include looking at which partner has predominantly cared for the pet throughout its life, has provided and paid for its upkeep, and has the ability to care for it in future. Importantly, courts may also consider any history of family violence in the relationship.
The Christmas and New Year period has always been a busy time for family lawyers. The end of the working year, combined with the festive season, summer holidays and family time, can be a testing time for partnerships. That’s before resolutions are added to the mix.
We might not be able to avoid the end of a relationship. But, at the very least, these reforms will mean that if and when that day comes, the beloved family pet won’t be a source of ammunition.
Jane Libbis is a founding partner and lawyer at Umbrella Family Law.