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Who gets to keep the family pet in a divorce?

The recent decision in Downey & Beale [2017] FCCA 316 illustrates the Court’s approach to determining disputes over pets. While many pet owners consider their beloved pets priceless and valued extensions of their families, the Federal Circuit Court adopted an approach that was based on property principles.

The case concerned a dispute over a pet dog (let’s call him “Toto”). The parties were engaged in 2012 and married in 2014. In March 2016 they separated. The parties were able to quickly reach agreement about most of their financial matters, however the one “chattel” they couldn’t agree on was Toto. Unlike other property division cases, neither party placed a value on Toto or sought an order that they be “paid out”, illustrating Toto’s sentimental value.

So, how did the Court decide the case?

The husband submitted that he should keep Toto for the following reasons:

  1. He paid for Toto at the time of purchase; and

  2. Toto was registered in the husband’s name.

The Court held that point (1) was a relevant matter to be considered under section 79 of the Family Law Act, and categorised the husband’s payment of Toto as a “contribution”. The Court rejected point (2) because the registration occurred 8 months after separation and in circumstances where there was clear notice of the wife’s claim of ownership. The registration was seen as “self-serving” in that context.

On the other hand, the wife contended that she should keep Toto because:

  1. Notwithstanding that the wife accepted that the husband purchased Toto, she claimed that he purchased Toto as a gift for her;

  2. Toto was living with the wife at her parent’s home since the time of purchase; and

  3. The wife adduced evidence of the costs she paid for Toto such as vet bills. The Court found that this demonstrated that the wife was responsible for the maintenance and upkeep of Toto to the extent that she was attending vet appointments and paying for them.

The Court did not have regard to the section 75(2) factors in this case. Judge Harman commented that if Toto were a service animal such as a guide dog, the section 75(2) factors may have been relevant. Accordingly the question was who owned Toto at law?

Judge Harman found in favour of the wife. No adjustment was made, particularly as both parties sought to retain Toto.

Going forward

An analysis of international case law illustrates that there are two general approaches to the issue of disputes regarding animals following a relationship breakdown. Some have suggested that the welfare of pets should be protected, and a similar “best interests of the child” model should be adopted in pet disputes, comparing the protection of animals to the historical treatment of women and slaves. Advocates in support of the “chattels” approach say that a shift to welfare arguments will open the floodgates to more costly litigation. Others say that pets cannot be compared to children.

Or perhaps the law should progress to something in between the two models? One thing is for sure – we will not be seeing pets attending on psychologists for Family Reports. Or at least we hope not.

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