After the breakup: how to keep your pet in your life

Recent amendments to the Family Law Act 1975 (Cth) (Act) through the Family Law Amendment Act 2024 (Amendment Act) provide a new framework for determining ownership of family pets in property settlements.

For the first time, the law will recognise "companion animals" as a unique type of property, giving the courts more guidance as to where pets will live after separation if the parties cannot reach an agreement themselves.

What is a "companion animal"?

The Amendment Act introduces a definition of a "companion animal", which means an animal kept by the parties to a marriage or de facto relationship primarily for the purpose of companionship, but does not include:

1. An assistance animal within the meaning of the Disability Discrimination Act 1992
2. An animal kept as part of a business
3. An animal kept for agricultural purposes
4. An animal kept for use in laboratory tests or experiments.

What decision can the Court make about a companion animal?

Following the amendments, the Court can make one of three decisions about the family pet:

1. That one of the parties to the proceedings has ownership of the companion animal moving forward
2. That the companion animal be given to a third party
3. The companion animal be sold.

There has previously been no reference to pets or companion animals in the Act and no guidance has been provided about how the ownership of pets should be addressed upon the breakdown of a relationship. Following the amendments, where there is a dispute about a pet, the Court will be required to consider the following:

1. The circumstances under which the companion animal was acquired. This could include factors such as who paid for the animal or whether the animal was a gift and to whom
2. Who has ownership or possession of the companion animal
3. The extent to which each party cared for the companion animal and paid for the animal's expenses such as food, grooming and vet bills
4. Any attachment either party or child of the parties has to the companion animal
5. The ability of each party to care for and maintain the companion animal in the future on their own
6. Any other fact or circumstance which the Court considers should be taken into account.

Interplay with family violence

The Court is also required to consider any family violence to which one party has subjected or exposed the other party to, and any history of actual or threatened cruelty or abuse either party committed towards the companion animal, when making an order regarding the ownership of the companion animal in a property settlement.

The Explanatory Memorandum to the Act states that the "amendments will support family violence victim-survivors (including where a family pet was used as a tool of coercion or control) to retain the pet where this may not occur under the current framework." In this way, the Act seeks to implement Article 16 of the 'Convention on the Elimination of All Forms of Discrimination against Women' and 'The National Principles to Address Coercive Control in Family and Domestic Violence 2023' which explicitly recognises animal abuse as a form of family violence. For a more detailed explanation of the impact of family violence in the determination of property settlements following the new amendments, head to this article.

The inclusion of companion animals as a category of property is designed to acknowledge the special place of family pets as members of many Australian families, as well as recognising that, in some instances, a threat to remove or harm a beloved pet can constitute family violence.

These changes will come into effect on 10 June 2025.

For more information on how the Amendment may impact you and your family, please contact our experienced Family & Relationship Law team.