Who owns the family pet when couples separate?

Family Law: 30 June 2023

Author: Susan Ilias - Our People

Pets have become an integral part of the family unit. But what happens when the family unit breaks down? Who takes the pet? Surely, this is not a family law property related issue.

In the case of Downey and Beale [2017] FCCA 316 it was noted that the law describes the manner in which a Family Law case about pets is to be determined and that pets are a chattel (property), and the ownership is to be determined by the Court.

It was noted by the Court that the registration of a pet was not a conclusive factor of the ownership of the pet. In addition, the payment of a fee for the pet does not, of itself, determine ownership or determine the Order, if any, which might be made by the Court in adjusting the property interests. In this case, the husband purchased the dog for the wife. It did not automatically make him the owner of the dog.

It was the wife one who had made the more significant contributions toward the dog’s care financially and non-financially. The wife paid for the vaccination, operations, food, and accessories. The Court determined that the wife was the owner of the dog.

Similarly, in the Magistrates Court case of Chow and Chong [2021] VMC 001 the issue of dog ownership was also determined. In this case the de facto husband purchased the dog for the de facto wife. This case also determined that the purchase of the dog did not necessarily pass from the breeder to the purchaser in consideration for the purchase.

In addition, it was noted that the fact of the dog being registered in the de facto wife’s’ name did not, of itself, establish or constitute statutory ownership in Victoria according to the Domestic Animals Act 1994 (Vic) (the Act”). In the Act, an owner is defined as a person who “keeps or harbours the animal or has the animal in his/her care.”

As in Downey and Beale [2017] FCCA 316 the de facto wife had cared for the dog but also had the dog registered in her name, had the dog microchipped with her details and the transfer documents from the breeder was in her name.

So, all in all, it is a combination of factors that the Court will consider when determining the ownership of a pet. Although registration and purchase of the pet does not necessarily determine ownership, it is a multitude of factors that are considered include who has cared for the pet, paid for vaccinations, vet visits, food purchases and other accessories.

At Aitken Partners, not only are we animal lovers, but we can assist with all your family law related enquiries. We understand that separation can be stressful, let alone when you have to worry about where you furry best friend will live, that’s why we keep things as simple and as stress free as possible. So call us on 8600 6000 to discuss all of your family law related enquiries.