In the division of family property on the breakdown of a marriage,[1] disputes between spouses about “companion animals” have been increasing, so much so that the law is being changed to give the family courts[2] power to decide which spouse gets the animal; that is, unless one spouse is bankrupt.
Animals
The legal and religious history of animals is extensive but for present purposes we’ll by-pass Aristotle and Pythagoras through to Descartes, Kant, and Tinbergen to note, briefly, the “animal trials” of the 13th-17th century, which involved putting an animal on trial for some criminal or civil offence – a pig for destroying crops, or a dog for biting a child. The animal was represented by a lawyer, before a jury. Execution was often the outcome.[3]
Centuries later, animals are accepted as not being human but they have become a feature of many persons’ lives – “companion animals” – as a sociological reality, in particular over the last century.[4]
But in the law they have always been and remain merely assets –
“a dog, for all its admirable and unique qualities, is not a human being and is not treated in the law as such”.[5]
At one level, some would confine the term companion animal to cats and dogs, others would include horses, rabbits, ferrets, guinea pigs, reptiles, birds and ornamental fish,[6] and maybe axolotls.
Domestic animals can be “owned” and can be sold as “goods”; wild animals cannot be owned or sold unless lawfully taken or killed: Heydon on Contract – Particular Contracts, 2024, at [1.430].
Given their centrality to family life, family law disputes between spouses about their pets are increasing and the family courts have often been asked to determine not only ownership but also visitation rights.
“pet custody agreement”
That is illustrated by the facts in Davenport & Davenport.
The husband said that he had made numerous attempts to visit ‘D’ fer dog and organise some “pet custody agreement” however the wife had refused. She was the registered owner of ‘D’ and while she may “have done more of the ‘D’ care duties”, he said he had made a financial contribution towards the dog, providing food, toys and visits to the vet, and a new kennel and food bowl. He requested the Family Court make an order that he spend time with ‘D’
“due to suffering pain and separation anxiety by not being allowed to have time with ‘D’, two days/nights per week at his home, transport arrangements to collect and deliver ‘D’ at an agreed location such as a park; contribution of $20 per week towards the care of ‘D’.”
The Court said it was aware that for many people pets are regarded as members of the family however there is no provision under the Family Law Act and no specific legislation that deals with issues such as the “custody” of a pet.
“whether that be a dog, cat, bird, lizard, fish or any of the wonderful creatures that we share the planet with that would empower a Court to make orders for shared custody of a pet”.[7]
I’ll think about it
Sometimes a spouse does not want shared custody. In Jarvis & Weston, the young son was emotionally attached to a dog.
“The [human] mother proposes the dog be collected from the father according to arrangements set out [in proposed orders]. … the father made submissions resisting the making of any such order … the father wanted more time to reflect on it, and in any event the Court has no jurisdiction to make any order about the dog”.[8]
As much as it will pain pet lovers, animals are property
In that case, as to jurisdiction, the Family Court seemed determined to rule on the matter, acknowledging that the father’s
“passing reference to the absence of jurisdiction may be right. But whether the issue falls to be considered under the accrued, associated, inherent, or parens patriae jurisdiction of the Court it can be found should the need arise. The boy is attached to the dog. The dog is to go with the boy”.[9]
The ultimate answer is found in the Full Family Court decision in Grunseth & Wighton[10] the Court said:
“As much as it will pain pet lovers, animals are property and are to be treated as such. Questions of attachment are not relevant and the Court is not, in effect, to undertake a parenting case in respect to them”.
Other cases
Similar facts and comments from other cases over a long time include these:
- If the animals have significant value, they can be valued in the usual way. It is more difficult in the case of a family pet of limited financial value. If the ownership is contested, there is much to be said for each party making a “blind bid” for the pet, with the highest offer accepted and taken into account in dividing the property.
- The parties did not place the family dogs on the balance sheet, presumably because they did not view the dogs as holding any financial value. It is noted for the purposes of these reasons that all the dogs are purebreds.
- The father seeks orders that he keep one dog and the mother retain the others, but there be a rotational system throughout the school holidays in line with the scheduled changeovers for the children.
- The mother gave evidence that the dogs are “brothers” and that they can’t be separated. The Court said it cannot take such considerations into account as they are to be treated as property, referring to Grunseth & Wighton.
- The father has the financial means to purchase a new dog. The mother does not. … The dogs are important to the children. This is another reason why they should stay with the mother.
The US – “visitation rights” and “best interests of the pet”
Such disputes are even more of an issue in the United States although in some cases where courts have been asked to determine “visitation rights”, or the “best interests of the pet”, they have declined, saying they have more than enough child access cases as their priority.
Given pets are property, one court likened the claim for a pet visitation schedule to that of such a schedule for a table or a lamp.[11]
New power of the family courts
From 10 June 2025, the Family Law Act 1975 is amended to give the family courts to make orders about companion animals such that when considering what order, if any, to make, the courts must consider a specific list of matters that apply only in relation to family pets.[12]
Under new s 4(1) of the Family Law Act, a “companion animal” will mean an “animal kept by the parties … primarily for the purpose of companionship”. But it does not include an assistance animal within the meaning of the Disability Discrimination Act 1992;[14] or an animal kept as part of a business, or for agricultural purposes; or for use in laboratory tests or experiments.
In considering what order (if any) should be made about a companion animal, the court is to take into account a list of considerations, including how the animal was acquired; who has ownership or possession of it; the extent to which each party cared for, and paid for its maintenance; any family violence to which one party has subjected or exposed the other party; any history of actual or threatened cruelty or abuse towards the animal; any attachment by, for example, a child of the marriage, to the animal; and the demonstrated ability of each party to care for and maintain the animal in the future, without support or involvement from the other party: new section 79(7).
Most of these criteria are based on matters that have arisen in the case law.
This new law starts on 10 June 2025. It is coupled with extensive law changes allowing the courts to take into account domestic violence by a party in making property determinations, with which animal abuse is often connected.
Bankruptcy
There can be the problem of the spouse who is bankrupt. The trustee in bankruptcy has existing powers to intervene in any family law proceedings to claim property of the bankrupt; at the same time, the family courts can make orders about the ownership of “vested bankruptcy property”. The trustee could strictly claim the animal as an asset in the bankruptcy, whether a companion animal or not.
The AFSA bankruptcy statement of affairs form asks the bankrupt to list any animal over $2,000 in value, and as I have reported, one bankrupt did so: A bankrupt’s list of ‘personal’ assets – Murrays Legal.
Therefore, a dog, a horse, or a cat or exotic fish might vest in the trustee who as owner would thereupon have responsibility under animal protection legislation for its care, pending its sale. The trustee would need to do a PPSA search given that an animal is an item of personal property over which security can be taken, for example fish, and “livestock” which includes
“while they are alive–alpacas, cattle, fish, goats, horses, llamas, ostriches, poultry, sheep, swine and other animals”.
In one English case, a receiver had to
“consider the application of the equitable doctrines of marshalling and subrogation in relation to a fixed charge over a dog”.[15]
A dog has assisted in proof of a company’s insolvency in that evidence of the directors’ knowledge of the insolvent state of their company was revealed by a debtor’s email comment –
““Won’t have to mortgage the dog after all!!” [indicating] that things were desperate”[16] –
which supported his claim that he believed the company was insolvent for the purposes of s 436A.
In reality
That’s probably enough on this topic save to mention other animal categories with real value such as livestock and animals bred for commercial purposes.
In reality, a trustee would not go after a family pet, as divisible property, whatever its value; and certainly would not do so if there were family law claims involved.
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[1] Or de facto relationship.
[2] Federal Circuit and Family Court of Australia (FCFCOA) (Division 2) and (Division 1).
[3] Animal Law in Australia, Lexis Nexis, 2nd ed, 2018, A Bruce, [1.16]-[1.20].
[4] Animal Law in Australia, Lexis Nexis, 2nd ed, 2018, A Bruce, [6.80]; Animal Law in Australia, LBC, 3ed ed, 2023, D Cao, Ch 6
[5] Arrington v Arrington 613 SW 2d 565 (1981) at 569
[6] What is a companion animal? An ethological approach based on Tinbergen’s four questions. Critical review Peter Pongracz & Petra Dobos, Applied Animal Behaviour Science 267 (2023) 106055.
[7] Davenport & Davenport (No.2) [2020] FCCA 2766
[8] Jarvis & Weston [2007] FamCA 1339
[9] Jarvis & Weston [2007] FamCA 1339
[10] [2022] FedCFamC1A 132 at [63]–[65].
[11] What Happens to Pets During Bankruptcy? is useful.
[12] Family Law Amendment Act 2024 (No. 118, 2024) – Schedule 1. See also the Senate Legal and Constitutional Affairs Legislation Committee Report, Family Law Amendment Bill 2024, October 2024
[13] Blank.
[14] An assistance animal is a dog or other animal accredited and trained etc to assist a person with a disability etc: s 9.
[15] McLean v Trustees of the Bankruptcy Estate of Dent [2016] EWHC 2650 (Ch) (26 October 2016)
[16] Hickey v Aselford [2003] NSWSC 185
