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Is my fur-baby really an asset??

PETSMALLCOVER

Do pets form part of the asset pool?

Frequently we refer to pets as our ‘fur babies’ and we treat them as our children and part of our family, but you may wonder what happens in the event of separation.

Pets as property

In the event of separation, the Family Law Act 1975 (Cth) applies to matters involving married couples and the Family Court Act 1997 (WA) applies to matters involving de facto couples.

The provisions under both of the Acts provide the Family Court of Western Australia with the power to make orders in relation to parenting, maintenance, and how property is to be divided.  However, there are no specific provisions dealing with pets under these Acts.  So rather than being treated like our children, our pets are considered and treated as ‘property’. 

PETSMALL

In the case of Davenport v Davenport[1] the Court dismissed the husband’s application for an interim ‘shared custody’ arrangement for a pet dog as the Court determined that it did not have the jurisdiction to make such an order.  This case relied upon the authority of Gaynor v Tseh[2] where the Court held that “it was conceded by the applicant that a dog does not fit within any other category of property than a chattel.  Hard as that may be for the applicant, and perhaps other dog lovers to accept, the law here concerns the alteration of interests in property”. 

Therefore, much like a chattel, personal possession or a piece of furniture, pets are treated as property and form part of the asset pool.

Value of pets

Even though we love and value our pets greatly, they are not generally regarded as significant assets and will only be awarded monetary value if they are for example a show dog or animal of pedigree.  In the case of Walmsley v Walmsley[3] the Court determined that it was possible to assign a monetary value to a pet in such circumstances.  The Court held that the wife’s pedigree dogs were an asset worth $3,000.  Therefore, the pets formed part of the asset pool and were counted as an asset retained by the wife.

In the case of Downey v Beale[4] the parties did not argue about the value of the dog.  The Court stated, “his worth is their love and affection for the creature as they express it”. 

In Benford v Benford[5] the Court was tasked with determining an estimated value for nine (9) pedigree dogs.  The Court did not have the benefit of expert evidence and noted that although it could order that the dogs be sold to confirm their value, it was preferable for the wife to retain the dogs at the estimated value of $3,000 each, which she had provided.

Although we may invest emotionally and financially in our pets, it is generally only pets that are regarded as significant assets that will be assigned a monetary value.

Ownership of pets

As the Court has the power to alter interests in property it can make orders in relation to which party should retain the pet.

Jarvis v Weston[6] is a case where the dog had no monetary value attached to it.  This case demonstrated the Court’s discretion when considering children and pets.  In this case, the Court ordered that the dog goes with the child of the relationship because the child was attached to the dog.  This resulted in the dog staying with the mother as the child lived with her, even though the father was the legal owner of the pet.

In the case of Downey v Beale[7] the Court considered the issue of pet ownership.  The parties had reached an agreement on virtually every aspect of their family law matter but were unable to reach an agreement as to who was the rightful owner of the dog.  The Court considered various factors such as the husband registering the pet after family law proceedings had commenced, and the husband purchasing the pet for his wife as a gift when the parties were dating.  The Court declared the wife was the owner of the pet and ordered that the dog’s registration be transferred into the wife’s name.

Factors that may be considered

Parties are encouraged to reach an agreement before commencing legal proceedings.  Two of the options available, when an agreement is reached, are a Binding Financial Agreement signed by the parties or Consent Orders made by the Court.

If no agreement is reached and the matter proceeds to Court, the Court may take the following factors into consideration:

  • Who is the registered owner?
  • Who purchased the pet and the circumstances surrounding the purchase?
  • Who the pet lived with prior to, during and post-separation?
  • Who has or had the responsibility and physical care of the pet prior to, and post-separation?
  • Who has the capacity to meet the ongoing costs of the pet including vet bills?
  • Who has suitable accommodation for the pet?
  • Relationships between any children and the pet and whether any child has a significant attachment to the pet?

Should you require any further information, please contact us and arrange an appointment with one of our lawyers to discuss the options available to you.

 

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[1] (No 2) [2020] FCCA 2766.

[2] [2018] FamCA 164.

[3] (No 3) [2009] FamCA 1209.

[4] [2017] FCCA 316.

[5] [2012] FMCAfam 8.

[6] [2007] FamCA 1339.

[7] [2017] FCCA 316.

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Monday, 16 May 2022