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Who gets the family dog on separation? | Brisbane Divorce Lawyer

The decision as to who should keep the family dog can be very difficult following a separation. As we all know, your dog is often a much loved member of the family or pretty well treated as a member of the family. It can be especially difficult for this issue to be resolved where your children are spending time with each parent or more unusually, one parent only but the family dog is living with one parent only following a separation. Read on to find out more from our Divorce Lawyer Team.

One option to consider is for the family pet to travel between households although this is not without its complications. Sometimes, as a practical measure, it can help to buy another pet following separation. Of course, that is not a full solution but it may assist in reducing legal fees that may otherwise be incurred resolving arrangements for your existing pet. Contact LGM Family Law today to speak with one of our experienced divorce lawyers. We are able to assist you with resolving this and other property settlement issues.

In a recent decision in the Federal Circuit Court of Australia, the Court declared that the Wife was the owner of a former matrimonial dog as against her Husband and ordered that the Husband do all things necessary to cause the registration of the dog to be transferred into the Wife’s name.

Whilst we do not know from the case what was the name of the dog, we will call him/ (or her) “Alfie” for the purposes of this article.

Orders had been made by consent of the parties including per Order 6 that “….each party will be entitled to retain all other items, chattels, superannuation, Jewellery” and personalty “ in their names and possession”.

However, as the one issue outstanding regards the consent orders, the Husband sought that as an effective exception to that Order 6, that the Wife transfer ownership of Alfie to him.

The Wife however sought that Order 6 would include ownership of Alfie and that as she had possession of Alfie, she be declared his owner. The Wife also sought then that the Husband transfer to her registration of Alfie pursuant to the provisions of the Companion Animals Act 1998 (NSW).

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Who gets to keep the family dog? | Divorce Lawyer

A little diversion

The Judge observed that the dog was a chattel being a sentient creature and noted that, at least in the English-speaking world, until relatively recently in our history, there were four classes of sentient creature who were capable of being the property of others. Firstly, people who had been slaves; secondly, women who had in the past often not been permitted to own property of their own but in many jurisdictions had been treated as the property of their fathers and then of their husband’s upon marriage; thirdly, children and fourthly, animals including companion animals such as the dog.

The Judge commented that sadly, these animals remain classified as the “property of their owners rather than having some more temporal existence with consequent rights”.

History is obviously not the object of this article. However, we pause to recognise with relief what  progress our western world has made in treatment of women and effective outlawing of slavery and think it interesting and worth considering that our closest animal friends should have recognised rights.

Back on track

The Court looked to a well known case in the High Court of Australia, Stanford v Stanford [2012] HCA 52, recognising that the first step in any determination of parties’ property interests and adjustments to those interests is to determine the net assets and liabilities of the parties.

Interestingly, the Court noted that neither the Husband nor the Wife sought to attribute any monetary value to Alfie and that this was appropriate. The recognised that Alfie’s value was not monetary but his worth was the parties’ love and affection for the dog as the parties each expressed it.

The Court noted, as the High Court in Stanford had made clear, that the Court was also required

to determine for the purpose of any controversy with respect to property adjustment whether an Order should be made and whether it is just and equitable for it to be so.

Whilst the Court had jurisdiction to make either of the Orders as sought by the parties, it was necessary that the Court determine whether any change in ownership of Alfie as it then existed should occur.

The Court concluded that:

  • Ownership of Alfie must be determined before the Court could determine whether any Order for the adjustment of ownership should be made;
  • The fact of payment by the Husband of the purchase fee for Alfie did not of itself determine ownership or the Order that the Court might make in adjustment of property interests between the parties;
  • Whilst ordinarily registration of ownership of a dog may assist in determining ownership, the Court would not draw any inference of ownership from Alfie’s registration by the Husband as the dog had not been registered until 8 months after separation and after the Husband had had clear notice of claim of ownership by the Wife in her Affidavit which had been served on him. The Court had looked for guidance as to “ownership” from NSW legislation mentioned above and noted the obligation of an owner under that Act to register a dog’s ownership within 6 months of acquiring the dog. Alfie had not been registered within that period;
  • The person who ordinarily kept Alfie was the Wife. A section of the NSW legislation provided a definition of “owner” as the person by whom an animal is ordinarily kept or the registered owner. The Court took the view that prior to the Husband having registered Alfie and subsequently, Alfie had either lived with the parties jointly and following separation, with the Wife;
  • The reference in correspondence annexed to the Wife’s material was the only direct reference to the dog’s ownership by the Husband and that was a mere assertion.

The Court then considered contributions under section 79 of the Family Law Act 1975, both financial and financial that had been made regards the purchase of Alfie and his on-going care and maintenance.    Whilst the Husband had paid the purchase price for Alfie, the Wife had contributed financially and non-financially to Alfie’s care, including payment of vet’s bills.

The Court took the view that it was very difficult to apply section 75(2) of the Family Law Act 1975 dealing with the future needs of the parties “unless one were to place some value upon lover and affection” whereas if Alfie had been a seeing eye do, those factors may have been relevant.

In these circumstances, the Court having determined that the Wife was Alfie’s owner, the Court took the view that there was no basis for any adjustment of interests in the chattel comprising Alfie.

The Court declared that the Wife was Alfie’s owner; that she had had possession of Alfie and that she had contributed to Alfie in such a fashion that it was not appropriate for any Order to be made varying ownership.

What next? | Our Divorce Lawyer Team

If you are needing family law advice on how best to resolve the issue of who takes ownership of your family dog or regards property division following separation, contact us and one of our experienced divorce lawyer will be happy to assist you.

You might also be interested in our complimentary separation checklist which has been prepared by our Divorce Lawyer Team to guide you through the process of separation.

Whether you’re located in Brisbane, Melbourne or elsewhere in Australia, our divorce lawyer team are able to assist you.

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