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My ex-partner and I bought a puppy for our children last Christmas and now we are separating
Laura and Riley were married with two children, Chloe and Mitch. Last Christmas Laura and Riley finally gave in to the childrens constantly badgering them for a French Bulldog. The children were overjoyed on Christmas day and called the puppy Murphy.
Laura and Riley recently separated and can’t agree on who is to keep Murphy. Everyone loves him dearly and both parties want to keep him.
How are pets dealt with in Family Law?
The Family Law Act 1975 (“the Act”) doesn’t have any provision which relates specifically to animals. The Act only provides for the court to be able to make orders about how property is to be divided, maintenance and parenting matters. Under the Act, pets are considered ‘property’. This gives the court the power to makes orders as to who will retain Murphy in this situation.
Commonly most pets are domestic pets and have no monetary value. If the animal is a pedigree then they may be determined to have a monetary value. If that is the case the determined value is to be included in the asset pool.
In the case of Walmsley & Walmsley No 3  FamCA 1209 the court held that the pedigree dogs of the marriage were worth $3,000. The wife retained the dogs and the dogs were counted as an asset retained by her.
In the case of Jarvis & Weston  FamCA the court held that the family dog, no monetary value being attached to it, was to live with the wife as the child of the relationship had a significant attachment to the dog. As the child was living with the wife, the court ordered that the wife retain the dog.
So who gets to keep Murphy in our scenario?
In the case of Laura and Riley, if they can’t agree who keeps Murphy and they need the Family Law courts to determine who is going to retain him, the court will consider factors like:
- who has the financial means to meet the ongoing costs of maintaining the dog;
- the extent of the relationship between the parties and the children with the dog;
- the lifestyle of each party and whether this allows for them to adequately care for the dog.
The issue of deciding who is to retain any pets after separation is an issue that court can decide however it’s not an easy one to make. The court has a wide discretion when making decisions around pets and they can take into account any factors they deem fit.
It is always best for parties to try and reach an agreement without the intervention of the court. It costs less and is less stressful for everyone involved.