By Martina Storgato, Partner and Gabriel Storgato, Legal Assistant

For many individuals, pets are regarded as integral members of the family. Australian family law is set to recognise this bond with amendments commencing in June 2025, which will alter how ‘companion animals’ are addressed in family law proceedings.

Historically, animals were treated predominantly as personal property. For instance, in the case of Grunseth & Wighton, the court affirmed that emotional attachment was not the primary legal determinant for ownership. These legislative reforms aim to establish a more equitable framework for determining the future of domestic pets post-separation.

Key Legislative Changes: Rationale and Impact

Effective from 10 June 2025, the Family Law Amendment Act 2024 (Cth) will implement new provisions concerning domestic pets. This signifies a departure from treating animals strictly as “chattels” or mere possessions. Instead, their status as companions will be formally recognised. This change does not mark a move away from earlier judicial approaches, such as in Davenport & Davenport (No. 2), where courts had determined they lacked jurisdiction to order shared care arrangements for pets akin to those for children. However, these amendments arise from an evolution in societal perspectives concerning domestic pets, prompting legislative updates to reflect their familial role, whilst also prioritising any formal role within a family law context. Furthermore, the reforms address serious concerns, including the involvement of animals in contexts of family violence.

Definition of “Companion Animal” and Relevant Exclusions

The new legislation introduces the term “companion animal,” defined as an animal kept by one or both parties to a relationship “primarily for the purpose of companionship”. The application of the new, specific considerations hinges on this primary purpose test. Certain categories of animals are expressly excluded:

• Assistance animals, as defined by the Disability Discrimination Act 1992
• Animals maintained as part of a business operation
• Animals kept for agricultural purposes
• Animals utilised in laboratory testing or experiments

Judicial Considerations for Companion Animal Allocation

In determining the allocation of a companion animal, the court is mandated to consider a specific list of factors:

• The circumstances of the animal’s acquisition (e.g. gift, joint purchase, pre-relationship ownership)
• Indicators of legal ownership or current possession (e.g. registration, microchip data)
• The extent of each party’s contribution to the animal’s care and maintenance (e.g. daily needs, financial upkeep)
• Any family violence perpetrated by one party against the other
• Any history of actual or threatened cruelty or abuse towards the animal by a party
• The emotional attachment of a party, or a child of the relationship, to the animal
• The demonstrated capacity of each party to provide for the animal’s future care independently
• Any other fact or circumstance the court deems relevant to achieving a just and equitable outcome

Practical Guidance for Pet Owners

It is crucial for pet owners to comprehend that despite these reforms, courts are precluded from ordering shared care or joint ownership of a companion animal. The court’s jurisdiction is limited to awarding sole ownership to one party, ordering the animal’s transfer to a consenting third party, or directing its sale. Parties seeking shared care arrangements for an animal must reach a mutual agreement through processes such as negotiation or mediation. Prudent steps include compiling evidence pertinent to your connection with the animal, your contributions to its care, and any relevant circumstances, including family violence or animal abuse, as these will be integral to the court’s considerations.