The Wellbeing of the Family Pet in a Divorce. “Paws” for Thought.

From January 2018, separating couples in the State of Illinois in the United States can seek Orders from the Family Law Courts about ownership of the family pet or companion animal and the Court is now required to consider the well-being of the animal.

This new law in Illinois dealing with matrimonial property now allows the Court to allocate sole or joint ownership of, and responsibility for, the companion animal of the parties. Interestingly, the Court is required to take into consideration the well-being of the animal when making a decision about ownership and responsibility. The requirement to consider the well-being of the family dog (or other companion animal) means that pets in Illinois are now being treated like children in family law disputes rather than property.

The first American state to make a similar change to the law was Alaska in January 2017, where the law in that state changed to explicitly allow joint ownership of pets and required Courts to consider the well-being of the animal when determining who would keep the family dog (or other companion animal).

However, in the Canadian province of Saskatchewan, which lies equidistant between Illinois and Alaska, a Canadian Family Court Judge said recently, “After all is said and done, a dog is just a dog.”[i]  In that case the wife sought an Order that the dogs live with her and spend 1.5 hours at a time with the husband. The Judge declined to make such an Order noting that the overburdened resources of the Court dealing with children’s matters did not allow it time to adjudicate such disputes.

The law in Australia as it currently stands requires the Court to treat the family pet like any other chattel.

The first step is to determine where the current legal and equitable interests lie before considering whether any adjustment of ownership is appropriate.

If there is a dispute over who owns a pet or where the pet will live in family law proceedings in Australia, the Court will treat the pet like property and consideration is given to the following:-

• who is the registered owner of the pet
• who paid the purchase price for the pet
• who maintained the pet such as paying for food, exercised the pet, paid the vet fees and registration.

Courts have been asked to determine the fair market value of pets and breeding pedigree animals in family law disputes.[ii]

However, some Family Law Judges in Australia who have recently been asked to consider and determine disputes about ownership of the family dog have recognised that “dogs are not our whole life, but they make our lives whole”[iii] and have decided that the family pet should live in the same home where the children primarily live when the children are very attached to the animal.[iv]

Whether the law in Australia will change to consider the family pet more like a child than property remains to be seen I suspect however, with our own overburdened family court system, the law is unlikely to change anytime soon.

Though with more than 62% of Australian households owning a pet (according to a 2016 survey and 24 million pets in Australia) pet ownership is at a record high[v] and with 66% of households with dogs reporting they regard their pet as a member of the family rather than a companion, lawyers are frequently asked to assist with resolving these disputes.

In the last week lawyers at Watts McCray have successfully resolved family law matters involving the pet dog. In one case the parties recognized the need for the dog to remain with the children in the former matrimonial home, pending the sale of that home, irrespective of which parent resided there. In the other case the only issue in dispute between the separating parties was who should keep the dog.

At Watts McCray Lawyers there are many lawyers who are very attached to their furry friends, and can help you achieve the best possible outcome for your family members, including the family pet.

This article was written by Michelle Meares, Solicitor at Watts McCray Lawyers.

[i] Henderson & Henderson, 2016 SKQB 282

[ii] Benford & Benford [2012] FMCAfam 8

[iii] Downey & Beale [2017] FCCA 316

[iv] Langley & Bramble [2008] FamCA 437 Watts J and Jarvis & Weston [2007] FamCA 1339 Moore J.

[v] Animal Health Alliance, Pet Ownership in Australia, 2016.