I am separating, what happens to our pet?

Pets are often treated as family members, with many of us referring to our beloved animals as our ‘fur babies’.

But what does this mean when a relationship comes to an end? How does the law decide who gets to keep Freddy the Frenchie?

Amendments to the Family Law Act 1975 that came into effect on 11 June 2025, have changed the way that the law regards pets in family law cases.

How where pets viewed before this change?

Historically, the Family Law Court viewed pets as property and they were delt with like any other asset, like a piece of furniture or vehicle. The Court would determine who had the greater right to the animal by considering who paid for it, whose name the registration was in and who paid for its expenses.

How has this changed?

Since the law reforms, pets are now viewed as a special category of property, as ‘Companion Animals’ which are animals kept primarily for companionship (not for business such as farming or as assistance animals).

The Court can now make the following orders:

• Awarding sole ownership to one party;
• Transfer the ownership of an animal to a consenting third party; and
• For the animal to be sold.

The Court must consider factors under section 79(7) for married couples and 90SM for de facto couples when making orders regarding pets.
These considerations include:

• The circumstances in which the companion animal was acquired;
• Who has ownership or possession of the companion animal;
• The extent to which each party cared for, and paid for the maintenance of the companion animal,
• Any family violence to which one party has subjected or exposed the other party;
• Any history of actual or threatened cruelty or abuse by a party towards the companion animal;
• Any attachment by a party, or a child of the marriage to the companion animal;
• The demonstrated ability of each party to care for and maintain the companion animal in the future, without the support or involvement from the other party; and
• Any other fact or circumstances which, in the opinion of the court, the justice of the case requires to be taken into account.

Domestic Violence

The Court also recognises that pets have been used as a tool to perpetrate family violence via coercive or controlling means. Examples of this involve victims remaining in an abusive household, out of fear that pets are going to be harmed or neglected if kept by other party. The Court also takes into consideration, any abuse perpetrated toward animals.

‘Shared Custody’ of the family pet?

It is not uncommon for separating couples to form the view that arrangements for their pets should be decided in a similar way to parents seeking orders for children.

In the 2020 case of Davenport & Davenport (No.2) [2020] FCCA 2766 the court dismissed the husband’s application seeking orders for shared custody of the parties’ dog. The court recognised while many people view pets as members of the family, ‘there is no provision under the Family Law Act and no specific legislation that deals with the “custody” of a pet…’

It is very important to note, that while the legislative changes provide additional considerations, pets are still treated as ‘property’ and the court does not have the power to make orders, similar to parenting orders for pets.

Support Animals

The changes to the Family Law Act are specifically in relation to Companion Animals and exclude support and assistance animals as described under Section 9 (2) of the Disability and Discrimination Act 1992 (Cth).

We Can’t Agree – What Options Do We Have?

Parties who cannot reach an agreement about who keeps the family pet, but do not want to proceed to Court have the option to attend mediation or arbitration or seek an assessment from specialist in pet behaviour to make a recommendation as to the most appropriate person for the pet to live with.

Are you separating and worried about your beloved pet?

Contact our team of experienced family lawyers at Bell Legal Group to help understand your rights under the new amendments to the Family Law Act.

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