Who gets the dog?

Emma Maxwell
read time
3 minutes
May 3, 2022
Who gets the dog (and your other pets) if you separate?

Unfortunately, in Australia, the Family Law Act treats pets as property – so there is a chance you fur baby will be treated just like a car or your Great Aunt Mary’s dining table if you separate and the Court has to decide.  So, if you can keep Fido out of Court proceedings that might be for the best.

In 2020, one of the Family Courts, which was then known as the Federal Circuit Court, decided that the Court had “no jurisdiction … to make an order for “shard custody” of a dog”.  If you’re interested in that case, which is a comparatively short and easy read, you can follow the link to Davenport & Davenport (No.2) [2020] FCCA 2766 (8 October 2020) here.

So what are your options if you are determined to keep your pets out of the property pool and the Court has refused to deal with “parenting orders for pets”?

Options that we have seen work in practice are:

  • an agreement between you to share your pet – we can help you prepare a written agreement for this which we like to think of as a “Pet Parenting Plan”. Just like a regular Parenting Plan for human children, it won’t be binding or enforceable, but the Court would use it as evidence of the intentions of the parties if you end up there.
  • an agreement that one of you takes your pet to live with them permanently. This could be for many reasons – perhaps one of you works from home, maybe one of you has always been more devoted, etc.
  • or, if you are great with communicating with your ex-partner and have kids, the pet travelling with the kids between the households. This is a great idea if the kids are bonded to the pet and it is a source of comfort for them navigating a separated family.

If all else fails, you can try what Mr Chou did in 2021, and file an application in the Magistrates’ Court of Victoria (or your local Court if you are in another state).  Mr Chou ultimately failed to keep “Kobe” and the judgement in Chow v Chang [2021] VMC 1 (10 February 2021) can be read here.

Mr Chow’s case does give a few pointers as to what you might need to think about in “proving ownership” of your pet:

  1. Ms Chang (who did get to keep Kobe) was able to provide a receipt from the breeder in her name (even though Mr Chow paid for the dog);
  2. Ms Chang was able to provide council, pedigree and microchip registration documents listing her as the owner; and
  3. Ms Chang produced copies of text messages where she repeatedly asked Mr Chow for a dog as a gift (and Mr Chow was clearly reluctant).

And if none of these solutions work, maybe it’s time to let the dog decide: