“No matter how little money and how few possessions you own, having a dog makes you rich.”- Louis Sabin

We’ve all heard the age-old phrase that a dog is a man’s best friend. But during the most recent lock-down pets have become so much more that a friend - more often than not, our pets can be our furry family!

There are so many psychological benefits to having pets around on our mental health. The American Psychology association has found that pets have a positive effect on both the physical and mental health of their owners, providing social support and improving wellbeing.[1] Indeed, studies in the UK have found that pet ownership can lessen some of the negative impacts of the last COVID-19 lockdown.[2] Even aside from these benefits, the emotional bond between an owner and their pets run deep.

In the ACT our laws have gone a long way towards understanding and reflecting the unique rapport between people and animals in the amendments to the ACT’s animal welfare legislation. These amendments are progressive and pioneering in recognising animals as “sentient beings” and giving them basic rights including the right to live without cruelty, neglect or abuse. Violation of these rights is a criminal offence in the ACT.

Despite this landmark recognition now entrenched in our law, the family law jurisdiction remains in need of amendment to keep up with the recent changes in animal welfare legislation. The Family Law Act 1975 (Cth) contains no provisions to specifically deal with sharing the care of animals. The Family Court regards pets as property under the Family Law Act. Ownership of the pets of a relationship will be awarded to one partner only in the settlement of family law matters. This is consistent with the Court’s preference to finally sever the ties between parties following separation. For example, in the Walmsley case, the Court valued pure-bred dogs of the marriage at $3,000 and declared them to be an asset to be dealt with as part of the property dispute between the parties.

However, where pets are deemed to have no monetary value, the line between animal sentience and animals as property becomes slightly more blurred. In Jarvis & Weston, the Family Court ordered that the dog was to live under the care of the wife, noting that the pet was of no monetary value and that the child of the relationship, who lived with the wife, shared a particular emotional bond with the dog. The Court can consider a myriad of factors in determining who the family pets should live with following relationship change, including:

• Who was the primary caregiver of the pet? Who fed, walked, bathed and took the pet to the vet?
• If the pet was registered, in which of the parties' names was the pet registered?
• Who paid for the pet if it was purchased?
• Who pays for the pet insurance, the pet's vet bills, the pet's food and other exigencies?
• Does the pet share an emotional bond with any of the children in the parties' care?
• Which of the parties has the financial means and lifestyle necessary to properly care for the pet?

As outlined above, although some consideration will be given to the benefit and interests of the animal in question and to the parties, many of the considerations are financial and contributions-based, further entrenching the perspective that animal ownership in family law is generally considered from a proprietary framework.

The amendments to the ACT animal welfarelaw may be an indication of changes to come in the manner in which “custody” of pets, or co-ownership and sharing, is considered by family law Courts. The times may be changing so that Orders can be made about the future living arrangements for pets. Alas- no such provisions exist at this time.

A recent landmark Court case in Spain suggests that there may be changing tides when it comes to the treatment of animals. Spanish divorce made international headlines for setting a precedent for a “joint-custody” ruling for the parties’ shared dog following their divorce. This judgement, which decided that the parties could be ‘jointly responsible’ and ‘co-caretakers’ for the parties’ dog Panda, was brought to the Court using the 1987 European Convention for the Protection of Pet Animals, which was ratified by Spain in 2017.

There is some way to go before the law in Australia is unified in consideration of the sentience of animal rights particularly in the family law jurisdiction. Most recently, in February 2017, the Paramatta Court observed that ‘sadly, (animals) remain classified as property of their owners rather than having some more moral existence with consequent rights.’ Still, with the progress seen both internationally and in the ACT, there is scope for family law in Australia to follow the example set in animal welfare legislation to recognise the unique importance of pets in the lives of their owners.

[1] Friends With Benefits_On the Positive Consequences of Pet Ownership.pdf

[2] Human-animal relationships and interactions during the Covid-19 lockdown phase in the UK: Investigating links with mental health and loneliness (plos.org)