A pre-nup for your pet? Companion animals and family law property settlement proceedings

There is no denying the significance of a pet in the lives of many families. Yet, who will own the pet following the breakdown of a relationship is commonly an unexpected dispute.

Last year, in a progressive step for Australia, the Family Law Act 1975 (Cth) introduced legislative provisions in relation to companion animals. Those provisions recognise companion animals as a specific category of property in family law property settlement proceedings and provide a framework for the Court to determine their ownership following a separation.

This article discusses the legislative provisions regarding companion animals, a perceived shortcoming precluding the Court from ordering a shared care arrangement, and the ability for a financial agreement to potentially overcome that shortcoming.

The former approach of the Court to pet ownership

Previously, the Family Law Act 1975 (Cth) did not make any reference to companion animals or how the Court should determine their ownership following a separation. Pets were treated by the Court in the same manner as all other property - that is, the same as the ironing board, if you will.

This position changed following the enactment of the Family Law Amendment Act 2024 (Cth), which introduced amendments to the Family Law Act 1975 (Cth) that came into effect on 10 June 2025.

Defining a companion animal

The amendments introduced a specific category for companion animals within the property settlement framework. The Family Law Act 1975 (Cth) now defines a ‘companion animal’ as an animal kept by one or both parties to a relationship primarily for the purpose of companionship.

A companion animal does not include:

1. an assistance animal within the meaning of the Disability Discrimination Act 1992;
2. an animal kept as part of a business;
3. an animal kept for agricultural purposes; or
4. an animal kept for use in laboratory tests or experiments.

Judicial considerations with respect to companion animals

Where the Court is asked to make a determination in a property settlement proceeding with respect to the ownership of a companion animal, the Court is to consider the following matters, so far as they are relevant:

1. the circumstances of the companion animal’s acquisition;
2. who owns or possesses the companion animal;
3. the extent to which each party has cared for, and paid the maintenance of, the companion animal;
4. any family violence perpetrated by one party to the other;
5. any history of actual or threatened cruelty or abuse by a party towards the companion animal;
6. any attachment by a party, or a child of the relationship, to the companion animal;
7. the demonstrated ability of each party to care for and maintain the companion animal, without support or involvement from the other party; and
8. any other fact or circumstance which, in the opinion of the Court, the justice of the case requires to be taken into account.

Having regard to these matters, the Court cannot make any order with respect to the ownership of the companion animal. The Court can only make an order that:

1. only one party is to have ownership of the companion animal;
2. the companion animal be transferred to another person who has consented to that transfer; or
3. the companion animal be sold.

While the Court may determine which party is to own the companion animal, it cannot, even with the agreement of the parties, make an order providing for the joint ownership or shared care of the companion animal. The effect of these provisions is consistent with the Court’s duty to, as far as practicable, make orders that will finally determine the financial relationship between parties and avoid further proceedings between them.

A case example: Wright v Berger [2025] FedCFamC2F 1315

The Court’s inability to make an order providing for the shared care of a companion animal was illustrated in Wright v Berger [2025] FedCFamC2F 1315.

In that case, while the applicant father did not dispute that the parties’ dog should be owned by the mother, he sought an order that he care for and house the dog during the periods the parties’ child was spending time with him. He also sought orders that the parties share the dog’s veterinary and registration costs, that the dog transfer between the parties’ households, and that the parties exchange information concerning the dog’s health and veterinary treatment.

The father submitted that the amended provisions did not prevent the Court from using its broad discretionary powers to make ancillary orders as to the ‘use’ of property owned by one party. In particular, he sought to distinguish between the concepts of ‘ownership and care’ and ‘ownership and use’.

The Court rejected the father’s submission. The Court found that the amended provisions of the Family Law Act 1975 (Cth) did not permit it to make orders providing for the shared care or use of a companion animal. The Court declared that the dog was to remain owned solely by the mother and declined to make any of the ancillary orders sought by the father.

To that end, where parties wish to provide for the joint ownership or shared care of a companion animal in the event of separation, they will need to reach an agreement in respect of that issue outside of the Court process.

Financial agreements and the joint ownership of companion animals

A financial agreement, colloquially known as a ‘pre-nup’, is a legally binding agreement made pursuant to the Family Law Act 1975 (Cth). The agreement documents, among other matters, how any or all of the property of the parties is to be distributed following the breakdown of their relationship. A financial agreement can be entered into before parties marry, during their marriage or de-facto relationship, or following a divorce or separation. Importantly, a financial agreement can document the ownership of companion animals in the event of a separation.

The effect of a financial agreement is that, provided it is not later terminated by the parties or set aside by the Court, it will bind the parties to its terms. A court in Australia is precluded from making an order with respect to property that is dealt with under the terms of a financial agreement. Further, and importantly, the terms of a financial agreement do not need to be within the confines of the orders the Court can make.

Where the Court is precluded from making an order for a companion animal to be owned jointly by separated parties, that joint ownership can only transpire in the event of a dispute following separation if parties had entered into a financial agreement in those terms. The financial agreement could then be relied upon to resist an application by either party to the Court regarding the ownership of the companion animal.

If parties wish to have joint ownership of a companion animal in the event of a breakdown of their relationship, they should consider documenting that arrangement in a financial agreement. While financial agreements have always provided a means of recording arrangements regarding the ownership of companion animals, the legislative changes serve as a reminder of the ability to do so.

Implications for pet owners

While the amendments pave the way for the Court to determine the ownership of companion animals following a separation, couples should be mindful that the Court cannot make an order for their joint ownership. Where couples wish to have certainty that their companion animal will remain jointly owned following separation, they should consider entering into a financial agreement. It is essential for parties to obtain independent specialist legal advice prior to entering into a financial agreement.

Time will tell whether the Family Law Act 1975 (Cth) will develop further to permit the Court to order joint ownership or shared care arrangements for a companion animal. After all, companion animals are akin to children, rather than property, for many of us.