Where pets have become increasingly important and beloved members of Australian households, and several thousand dollars often spent on their purchase and ongoing care, a recent appeal in the family law courts has confirmed that they are to be treated as property and, perhaps unsurprisingly, not in the same way as children under the Family Law Act.
In the case of Grunseth & Wighton from earlier this year, the Appeal Court ordered the parties’ pet spoodle “Roxy” to be retained by the de facto wife as she was the registered and legal owner of the dog, and it was open to find on the evidence that she had paid for Roxy. This is despite the trial judge considering at first instance that the purchase monies for Roxy were “intermingled”, that the de facto husband had an “emotional interest” in the dog and that the dog had initially been purchased for the husband’s adult daughter.
The Court said:-
“[The de facto wife] … is the registered and legal owner of Roxy. Whilst there is conflicting evidence … it is not in dispute that she at least paid for the deposit and ongoing costs. It was open to the primary judge to find on the evidence that the [de facto wife] … paid for Roxy…
As much as it will pain pet lovers, animals are property and are to be treated as such. Questions of attachment are not relevant and the Court is not, in effect, to undertake a parenting case in respect to them.”
The proposition of pets being treated as property was put forward in the earlier case of Downey & Beale from 2017. It can be taken from that case that the following are factors the family law courts are likely to consider in deciding who should have ownership of a family pet:-
- When the pet was purchased;
- Who paid for the pet at the time of purchase;
- Whether the pet was a gift and who it was purchased for;
- Whose name the pet is registered in; and
- Who paid for vet bills and other expenditure on the pet (e.g. food and medications).
It will be interesting to see whether the approach to treating pets as property will ever change and whether the Court would ever order a ‘shared’ arrangement for a pet. I have heard of such an arrangement being ordered for an expensive piece of artwork that was to move between households of separated spouses, however I think this would be likely to be at odds with the duty imposed by the legislation for the Court to make orders that finally determine parties’ financial relationships and avoid further proceedings between them. It was interesting that in the case of Grunseth & Wighton the Court suggested an approach where parties make a ‘blind bid’ for the pet with the highest offer accepted and taken into account in dividing the property.
If you have a pet and wish to ensure it stays with you in the event of a separation, you should firstly ensure that the pet is registered in your name and that you keep records, such as receipts, that evidence the payment of vet bills and other expenses you meet for the pet. You could also speak to a family lawyer such as myself about whether a Financial Agreement that sets out what is to happen to property in the event of separation is advisable for your circumstances, however given the legislative requirements for such Agreements, this is unlikely to be a cost-effective option if the only property you are seeking to deal with is a pet.
