For many of us, our pets are as dear to us as our children. They bring us joy, encourage us to be active outdoors and generally improve our quality of life. So you might expect there to be custody issues when a relationship comes to an end.
It may seem strange to discover that at the end of a de facto relationship or marriage, pets are considered property under Australian law. Where they go and who they live with is covered in the property settlement agreement. But truthfully, if you are at loggerheads over the pets, there may be some other tangled property situations where a family law expert may be helpful.
Deciding who gets the dog in a breakup can be a painful choice to make. Consider the hypothetical situation of Bob and Sally. They are in a relationship and decide that Bob should move into Sally’s house. They purchase a pet dog, which Sally registers as she picks it up.
During the two years they live together, they buy furniture for the house, and both buy cars. He helps out around the house by painting it and fixing the fence. He also takes care of the dog and takes it to the dog park every day, which is easy for him as he owns his own business. However, one day Sally and Bob fall out and decide to separate.
The question arises, who owns what (including the dog)?
Who gets the dog in a breakup depends on these 3 things
1. Married, de facto, or just dating?
Lots of people choose not to formalise their relationship through marriage. There are a million reasons, but sometimes it just seems simpler. One thing should be clear, however. Since 2009, separating de facto Australia couples are now treated the same as married couples in terms of the division of property and the payment of spouse maintenance. So, more de facto couples are now requesting the services of our Owen Hodge divorce lawyers Sydney.
To answer the question of who gets the dog in a breakup, first we need to determine whether there was actually a de facto relationship. That will depend on the totality of circumstances. Among the factors that a court will consider are:
- Length of the relationship;
- Nature and extent of common residence;
- Whether a sexual relationship exists (it does not matter whether the individuals are of the same or different sex);
- Ownership of your property;
- Care and support of children;
- Degree of financial interdependence; and
- Reputation and public aspects of the relationship.
The last factor, in particular, makes it unlikely that individuals could “accidently” find themselves in a de facto relationship. There must be at least some ambiguity. Let’s explore this further by going back to our hypothetical example.
Who gets the dog in a breakup between Bob and Sally? We must first ask, are Bob and Sally in a de facto relationship? Well, it’s ambiguous. There are no children; there does appear to be property, including the shared pet dog. Neither appears to have another residence, and we do not know about financial interdependence or how they present themselves in front of other people.
Clearly, however, if Bob and Sally are in a de facto relationship, then their property must be divided on separation.
Would it be different if Bob and Sally were only together for a year and had a child? Stay tuned.
2.What property is subject to division
The property subject to division (referred to as marital assets, but applicable in de facto situations as well) often encompasses more than couples anticipate. These include:
- all real estate, including the family home;
- cash in bank accounts, both joint and separate;
- corporate shares;
- superannuation for both parties;
- motor vehicles;
- household items, including items of value such as antiques or artwork;
- tools of a trade;
- business assets owned or controlled;
- any inheritances received or anticipated during the relationship.
So, we cannot decide who gets the dog in a breakup without also considering the above “marital assets”. Sally may have to share the value of her house. Bob may have to share his IT business and superannuation if any. It’s worth noting that Sally’s registration of the dog does not automatically make her the sole pet owner, especially since Bob also participated in regular dog care.
3. How will the property be divided?
It is not necessarily a 50/50 split. The court will look at a number of factors before determining whether a proposed property division is just and equitable for both Bob and Sally. Those factors include:
- The assets, liabilities and financial resources they have. Some assets may have to be liquidated in order to be divided, but some assets can’t be liquidated, like a labradoodle, so factors such as ownership rights may need to be explored when it comes to making arrangements for pets.
- The contributions of both Bob and Sally to the acquisition, maintenance and improvement of matrimonial assets (both direct financial contributions and non-financial contributions, like payments of deposits, cooking, mowing the lawns, fixing the fence).
- The future needs of each of them and whether one person needs a bit more of an adjustment – for example, where will they both be financially in five years’ time? The court may take into account factors such as their age, health and capacity for appropriate gainful employment.
- Finally, taking into account the factors for consideration from 1-3, the court will need to consider whether the proposed division is a reasonable outcome for both people.
So, when deciding who gets the dog in a breakup, the court will consider the above steps.
During this process, it is easy for both parties to become emotional. After all, this is everything you have built together. That’s why it’s a good idea to engage an experienced family lawyer to guide you through the property settlement process. They will be focused on a principled outcome that is commercially sound, including who is awarded dog custody, so that separating couples like Bob and Sally can move forward in life.
How to keep it simple
Dealing with such a situation in the above-presented way is the goal for many couples who are in a de facto relationship. The best way to make sure that pet and other property ownership issues stay simple is to seek advice about your rights and entitlements early after separation before unnecessary disputes arise. Upon agreement, you and your former partner can formalise it quickly and cost-effectively by entering into a consent order sealed by the court.
If at the end of a de facto relationship, you find yourself faced with difficult problems surrounding property division, Owen Hodge Lawyers has some of the best family lawyers Sydney has to offer. We’re willing and able to help. Please call us at 1800 770 780 to schedule an initial consultation specifically tailored to answer your questions.
At Owen Hodge Lawyers, we always strive to provide you with the best legal advice and guidance – no matter your issue. We specialise in a range of law matters, and have a blog that offers in-depth and comprehensive articles. Read our latest posts on child custody rights for fathers, no fault divorce and annulment vs divorce on the Owen Hodge blog today.