When Brian Davenport’s* marriage ended,his ex-wife kept the dog.

Davenport’s wife was the registered owner and had been the primary carer,but Davenport said he helped pay for food,toys and vet visits.

Not being allowed to have time with the dog caused him “pain and separation anxiety”. Davenport made numerous attempts to visit the dog and sort out some sort of pet custody arrangement,but said his ex refused.

And so the fight over the fur baby ended up in one of the family courts.

Davenport sought orders for joint custody,but the case was dismissed because the court lacked the jurisdiction to make that order.

Judge Amanda Tonkin pointed out that under family law in Australia,pets are considered chattels;an item of property.

“The court is aware that for many people pets are regarded as members of the family,” she said.

“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.”

The case –Davenport&Davenport – is often cited by family law firms offering advice to splitting couples feuding over the vexed question of who gets the dog (or cat,or rabbit).

A court can determine who gets a pet as part of a property settlement,but family law firms warn they cannot make shared custody orders and are not required to consider the best interests of the animal.

“Unfortunately,in Australia,the Family Law Act treats pets as property – so there is a chance your fur baby will be treated just like a car or your great-aunt Mary’s dining table if you separate and the court has to decide,”writes Emma Maxwell,a family lawyer and director at Anchored Family Law in Melbourne.

“So,if you can keep Fido out of court proceedings,that might be for the best.”

Sometimes this is easier said than done:for many besotted owners,Fido is a ferociously loved member of the household.

‘What is family?’

Family lawyers say pets are among the most contentious and emotive issues in settlements negotiated between separating couples.

“There has been an increase in inquiries and cases,particularly in the last six months,” says Hayder Shkara,the principal of Justice Family Lawyers in Sydney and director of Melbourne Family Lawyers.

Shkara – who was recently involved in a hotly contested court case about who got possession of the rabbits – attributes the increase to more people remaining childless and pets assuming greater importance in people’s lives.

In December,the Australian Institute of Family Studies published the research paperWhat is Family?

More than half (52 per cent) of 6000 participants considered their pets to be part of the family. (For LGBTQ people it was close to 60 per cent.)

Australia has one of the highest pet ownership rates in the world;according to the RSPCA,about 69 per cent of households nationally have pets.

Meanwhile,Australia’sfertility rate is near historic lows,with the baby drought most noticeable in our biggest cities.One in four households were childfree in 2022.

When pets are part of our families,they are also part of our divorces,separations and custody disputes.

In 2021,a stoush in the Melbourne Magistrates’ Court over Kobe,a $4000 Pomeranian,made headlines.

Text messages between the couple leading up to the purchase of Kobe were even provided as evidence to show the boyfriend was initially reluctant to be a dog owner.

On one occasion,when the girlfriend sent a photo of a rescue dog,the boyfriend responded,“Daddy is busy making money. No time for a doggy like this”.

The magistrate ultimately decided the dog was the property of the girlfriend because it was purchased for her as a gift.

“When two people don’t have children and Rover has been basically the surrogate child,that obviously has a huge emotional bearing,” says Dylan Burch,a family lawyer at Aitken Partners.

“The pet is so important to both of them,both for continuity of moving into a new world without their partner,but also more importantly,just their friend that they have had the whole way through. So it has been a really,really difficult thing because obviously[pets] are technically classified as property.”

Changing the law

Family law specialist Michael Tiyce believes Australian laws should be amended to reflect theprofound emotional bonds between animals and their owners.

Currently,courts typically determine ownership by looking at financial contributions – who bought the pet,for example,or who paid the registration and took care of the vet bills.

However,this pets-as-property model does not take into consideration what is best for the pet and owner,such as who has the bigger yard or who spends the most time looking after the dog.

There is also no case law that provides for a shared-care arrangement for items of property – you don’t move the fridge between households or visit the TV.

“The sorts of things that we look at in terms of making arrangements for children aren’t what we look at necessarily when it’s for animals,” Tiyce says.

(The court may,however,consider the best interests of a child under section 60CC of the Family Law Act. This could result in the family pet remaining with the parent with whom the children typically reside.)

Tiyce&Lawyers has a “puppalegal” – Ferdinand – who mooches around the office and has his ownFacebook page.

“I would be fanatical about the arrangements for my dog if my partner and I separated,” Tiyce says. “I’d probably give him the house and just keep the dog rather than have the fight.”

Tiyce believes pet custody laws that move beyond traditional property principles would be a large step forward. He points to other jurisdictions that treat pets more like children.

In 2017,Alaska became the first US state to require courts to take into consideration the wellbeing of the animal and to explicitly empower judges to assign joint custody of pets.

The Alaska bill was the brainchild of the late Democrat Max Gruenberg,a former family lawyer who had once handled a divorce case that resulted in joint custody of a sled-dog team.

Similar laws now exist in California and Illinois.

In 2022,Spain adopted laws that require courts to consider the pet’s welfare during a settlement,with their legal status changed from objects to sentient beings.

“Factors such as the best interests of the pet have been encoded into legislation within other countries and would work well alongside primary carer designation,visitation rights procedure,and financial support for the ongoing care of the pet,” Tiyce says.

Dr Marilyn Bromberg,from the University of Western Australia’s law school,agrees it makes sense to recognise pets as more than property in family law.

“Currently Australia’s pet custody model is anachronistic and no longer in sync with Australian attitudes,” she writes with Nicholas Cardaci and Adam Jardine inNo more fighting like cats and dogs:It’s time for a new pet custody model in Australia, which was published in theCanberra Law Review in 2022.

“Pet parents will ascribe to their fur babies characteristics they would see in their own children:wilfulness,playfulness,obstinacy,and above all,affection. We give them human names. We rely on them for emotional support … When they die,they are mourned … These creatures are not property. They are family.”

The Attorney-General’s Department said there were no changes currently proposed to the Family Law Act regarding pets.

Time for a prenup?

Family lawyer Eve Smith has personal experience of dogs being used as pawns in marriage breakdowns.

“My sister in the UK went through separation. They lived an outdoor lifestyle and had spaniels,and my brother-in-law kept the dog away from my sister and it broke her heart,” Smith says. “So I have seen it happen firsthand and it’s awful.”

Smith,a partner and co-founder of Umbrella Family Law,has seen rabbits used as blackmail and a stoush over who gets the dog’s ashes.

“We do a lot of pet custody cases,but this one has come as a bit of a shock because now we’ve got pet ashes to consider.”

Smith urges families to consider a pet prenup so animals don’t become weaponised or used as bargaining chips if a relationship sours.

These kinds of agreements – which Smith says are becoming more common – can include who will get custody of the pet,who pays the food and vet bills,visitation rights and end-of-life arrangements.

All the lawyers at Umbrella Family Law have been trained by dog-behaviour consultant Karis Nafte,an international expert on pet custody.

‘It really made us think about the animal as a being rather than a chattel that’s passed between households.’

Eve Smith,family lawyer

Nafte challenged some of their assumptions,such as that dogs should always remain with children. Dogs who need a lot of exercise,she told the lawyers,could be better off with the partner who can take it for plenty of walks,rather than remaining with children where it might be indoors most of the time.

“It really made us think about the animal as a being rather than a chattel that’s passed between households,” Smith says.

“And that’s opened up our eyes in helping us in our advice to clients. We think about what’s in the best interest of the children,but now we also consider what’s in the best interest of the dog,because you might have a lovely happy dog in the family household,but that may well change upon separation.”

Dr Chantelle McGowan is a veterinarian and animal behaviour consultant,or – as they sometimes call themselves – a cat-vocate.

They have come across animals at their practice,Calm Pet Vet,that are deeply affected by custody disputes.

“Changing location of dwelling can turn a pet’s world upside down,with different noises,smells,interactions and safe spaces.”

Dr Channy,as they are known,says stressed animals can become dysregulated and require psychiatric support.

“There are now more ‘pet parents’ that do not want to lose connection with the pet during and after a separation,but this is the more disruptive scenario for the pet as it can become unpredictable and confusing.”

While shared care is something that can be agreed to at mediation,it can’t be ordered by a judge under Australia’s pet-as-property family laws.

“This is a good reason for people to try to resolve the dispute between them,” says Natalie Barry,special counsel at Taussig Cherrie Fildes.

However,the agreements can be difficult to enforce and maintain.

“The parties think it’s a good idea to begin with,and then as they move on with their lives,generally the pet ends up staying at one person’s home,” Barry says.

Custody fight

David Roberts* spent more than $10,000 on legal fees trying to get custody of the family dog.

His son,who lived with Roberts,told his psychologist the dog was the only thing he wanted.

“The dog was his best friend growing up,” Roberts says. “My ex wouldn’t release her to us – it was more of a control thing,I think,than anything else. She came up with all these fanciful excuses that she needed the dog.”

The dog was registered in his ex-wife’s name,but Roberts had receipts for its payment and vet bills. “I had all these reports written about how much the dog would benefit my son,” Roberts says.

Eventually,the court decided in Roberts’ favour,presumably due to consideration of what was in the child’s best interest.

David Orme,a senior associate at Macpherson Kelley,the law firm that acted for Roberts,said there was no mention of the dog in the final judgment for the divorce settlement.

“It was given very short shrift,the judge effectively said ‘chattels were dealt with at an interim stage’;chattels included the dog of course,” Orme says.

But for Roberts and his son,the dog was not a chattel.

“The photo still sits on the fridge of the day that I picked my son up from school and the dog was here,” Roberts says. “She’s a big oaf,you know,she’s gorgeous.”

*Pseudonyms are used to protect the identity of those in family law proceedings.