The heading of the topic may seem funny. however, the role of pets is immensely important and ever-growing in modern-day society. People are seen fighting tooth and nail to retain the custody of the lovely pet and won’t like the separating partner to have a piece of it, be it a cat, dog, horse or snake. Oh yes, I said snake.
The Australian law is generally seen from two aspects – property and children. It doesn’t really make specific provision(s) about non-human children/members of the family. Rather, pets fall under the category of ‘chattels’ or, put simply, ‘the property’. The High Court of Australia made it clear that the best way to go about determining which separating spouse gets what is to calculate the net monetary value of all assets and liabilities of the parties and then divide them all between the parties after considering the contributions and adjustments. In the case of non-human members of the family, however, it’s difficult to determine the monetary value of the beloved pet. Such a situation was acknowledged by Judge Harman in an interesting case by making an expression that “one would hope, in this neoliberal world, that we have not come to the point where even love and affection are commoditised.”
So, who will keep the pet? The court generally looks into a number of factors to decide, including but not limited to financial and non-financial care, such as the purchase records, council and microchip registration, accommodation, maintenance and care, everyday attachment, including walking, exercising, feeding, cleaning, timely vaccination and so on.
The test is very subjective and varies from case to case. Sometimes, a judge may make an injunctive order to ensure that the pet(s) go with the children or a particular child while moving between the parents’ homes. It is the contribution to the well-being of the pet, being the love, care and attachment provided by a party will determine the custody of the family pet. In the case of Poulos, the court allowed the wife to keep the dog even though the child was ordered to live with the husband. Interestingly, the pet-friendly accommodation was a determining factor in awarding the custody to the wife.
I am aware of a case where the issue was pet snakes, which belonged to the husband before the marriage broke down. The husband held the licence to keep the snakes as he was the only one to love them, but left the snakes while driving away from the joint home. The wife took care of the snakes in the absence of the husband, worked her way through the fear of snakes and organised a licence for herself. Eventually, the wife and children all came to care for and love the snakes and benefited therapeutically as well. After a year and a half, the husband dramatically came back to claim the snakes. The wife refused and fought passionately. The court, however, weighed in favour of the wife and the children.
The animal advocates cry for the wrong to be cured, as it is not appropriate to treat them as property, given their capacity to experience complex emotions and the importance they have to their families. This has led some of the countries, including the USA, to develop and incorporate the ‘best interests’ approach used in parenting matters and even awarded custody to one party and visitation to the other party.
I may point out that the law provides that people contemplating entering into a marriage may make a written agreement in respect of property or financial resources of either or both of the spouse parties which includes the beloved non-human members of the family.
