Most people regard their pets as members of their family and love them unconditionally. Many people assume that if they separated from their spouse and there was a disagreement about who keeps the family pet, the Family Court of Western Australia would impose “custody” arrangements as they do for children’s matters.
In making decisions about children, the Family Court needs to determine what is in the best interests of the child. Unlike child-related matters, the “best interest” principle is not applied to pets.
Family law cases in Australia have established that family pets are to be treated as “personal property” and are included amongst the assets of the parties such as cars, furniture and jewellery.
Although Australian laws are yet to change this principle, the State of California in the United States has moved in a completely new direction and now applies a ‘best interests’ principle to pets.
The new law is the third of its kind with Alaska and Illinois passing the pet “best interest” principle in 2016 and 2017 respectively. The passage of Bill AB 2274 which came into effect on 1 January 2019, amends California’s Family Code to differentiate companion animals from other types of marital assets and allows the courts to create “shared custody” agreements between the parties.
Many people view their pets as their children and believe that their care ought to be taken into consideration. This new legislation allows for this and provides direction to the courts to consider the best interests, wellbeing and care of animals in divorce proceedings. This means that judges will be able to take into consideration factors in relation to the animal’s physical and mental wellbeing such as who walks, feeds, plays and looks after the animal when deciding where the animal should live.
This new law clearly distinguishes companion animals from personal property. Many individuals would welcome this change as pets evidently aren’t pieces of furniture, they have feelings and their owners are incredibly attached to them.
California is the largest state in the United States to pass such a law and it may not be the last.
Will Australia follow a similar path in the future in relation to pets? Watch this space!