Umbrella Family Law co-founder Eve Smith has observed a marked increase in demand for advice about pet custody matters. Speaking to Lawyers Weekly, she said that in Australia, pets are regarded as “chattels”, alongside cars and furniture – meaning that pet custody post-separation usually forms part of the property settlement. 

“Separating couples should not rely on Australia’s courts to rule on custody of a pet. In my experience, though the Family Court has the power to make decisions about pets, it has been reluctant to do so,” she said. 

“It’s no surprise that pet ownership is increasingly becoming the subject of disputes when couples separate. Australia has one of the world’s highest rates of pet ownership. Pre-COVID, 61 per cent of Australian households have a pet, compared with 57 per cent of American households and 40 per cent of households in the UK. Additionally, whether by circumstance or by choice, around one in four Australian households is child-free. The expression ‘fur babies’ was coined for a reason: we love our pets.”

In terms of when a pet custody agreement should be put in place, Ms Smith said that any couple who shares a pet should consider having one in place; and having it address a few key factors. 

“The agreement should address the pet’s schedule, transportation arrangements, diet, exercise requirements, visitation rights, end of the pet’s life arrangements, and who pays for veterinary care, grooming, food, insurance, and other pet needs. The point is to reduce stress on the animal by keeping things as calm and consistent as possible,” she explained. 

“A couple should also consider what the agreement would look like if they have more than one pet and whether it would be in the pets’ best interests to separate the animals or keep them together. Ordinarily, the advice is not to separate pets but that again depends on a myriad of factors.”

By having one of these agreements in place, many pet custody battles can be avoided. 

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“By including pet-focused clauses in a pre- or post-nuptial agreement, couples would eliminate the risk of a dispute and protect their ‘fur baby’ from being used as a bargaining chip. Although pre-nuptial and post-nuptial agreements are not 100 per cent legally binding, they do strongly evidence the parties’ intention,” Ms Smith added. 

“While most people will be familiar with prenups, post-nuptial agreements have a lower profile and are often overlooked. A post-nuptial agreement, commonly known as a legally binding financial agreement, could be useful if a couple acquired an animal during the course of their relationship and did not have a prenup already in place.”

These kinds of agreements should include terms regarding who will get custody, care and control of the pet, who is responsible for expenses like vet visits, insurance, food and grooming and what kinds of access arrangements are in place. 

“I would urge separating couples, to put their emotions aside and prioritise the interests of their ‘fur baby’. What’s best for the pet will depend upon a myriad of factors including the breed and age of the animal, the amount of exercise the animal needs and is used to (there’s a difference), the animal’s health and behavioural history, whether children are involved, and where and how each party will live post-separation,” Ms Smith added. 

“We often see couples have resolved the pet custody issues themselves but without necessarily taking into account all of the factors that a lawyer trained in pet custody would help them consider. Lawyers need to help clients consider the needs of the pet and call in an animal behaviour expert, if need be.”