K3 Legal lawyers discuss what becomes of beloved family pets when couples part
What becomes of beloved family pets when couples part? As much as you would like to believe it, your pets are not actually children, and the Care of Children Act 2004 does not apply. Consequently, seeking parenting orders for the care of “Buddy” through the Family Court is not an option.
Instead, section 2 of the Property (Relationships) Act 1976 (PRA) includes household pets within its interpretation of “family chattels”. “Buddy”, being a chattel, is relationship property and can be included in negotiations for division during the separation process.
However, the Courts have taken a more practical approach. The bond parties form with their pet is considered, as is the fact that “Buddy” is a sentient being. This is in stark contrast to the relative lack of attachment to the inert set of drawers which springs to mind when one thinks of a “chattel”.
In Sydney v Sydney [2012] NZFC 2685, one of the issues presented before the Family Court was who the parties’ dog, Milo, should live with. Mrs. Sydney sought a form of shared care over Milo, but Mr. Sydney disagreed as this would require him to have ongoing contact with Mrs. Sydney. The Court referred to O’Brien v Tuer DC Waitakere, 9 September 2003, where the Court determined that the pet’s welfare is the primary consideration. The Court also referred to Judge Burn’s view in C v D FC Auckland, 27 May 2011, which was that the party who has current possession of the dog has no better claim than the other party to the long-term care of the dog.
The PRA’s “clean break” principle came into play in Sydney. Although both parties harboured strong emotional attachments to Milo, ultimately the Judge considered what would be in Milo’s best interest. The Judge decided that Milo, who had resided with Mr. Sydney for the past two years and was clearly attuned to an outdoor lifestyle, would continue living with him. A monetary adjustment of $425 was granted to Mrs. Sydney, representing half of Milo’s value.
In Wilkinson v Wilkinson [2021] NZFC 8995, the Family Court considered the care of Nelson (Maltese x Shih-Tzu) and Eric (Maltese). Nelson and Eric had been in the long-term care of the parties, and Mr. Wilkinson’s position was that he was to retain Nelson while Mrs. Wilkinson retained Eric. However, Mrs Wilkinson wanted a clean break and for both dogs to remain with her.
The Judge conveyed that there was “lot of grief expressed during the hearing” and “a place of sadness for both parties is around the changed care and control of Nelson and Eric”. The Judge accepted that both parties miss the dog who is in the care of the other parent and that both parties are sensitive to their lovely pets. Ultimately favouring the “clean break” approach and acknowledging that this decision may sadden the respondent, the Judge decided that Nelson remained with the applicant, and Eric with the respondent.
The Family Court’s jurisdiction over pet care decisions following separation is evident. However, these are cases where the parties were not able to mutually agree to division of relationship property, commenced court proceedings and went all the way to a hearing. There is no reason why, in cases of an amicable separation, the parties cannot mutually agree to a shared care arrangement of their beloved pets.
This could be implemented by way of a separation agreement under section 21A the PRA. This would be a particularly good option if there remains some form of a reasonably amicable relationship between the parties.
Such a relationship would be necessary because agreeing to an ongoing shared care of the pet would continue the parties’ relationship to some degree, contrary to the principles of the PRA. The PRA principles encourage a clean break, and final division of relationship property. However, parties can often manage with the care of children post separation when their relationship is not considered “amicable”. So, in our view, there is no reason why this arrangement should be treated differently.
To address the contrarian nature of the agreement in light of the principles of the PRA, the clauses could consider the way the parties deal with each other, the way they organise the care of “Buddy”, and also what contingency plans are in place should one of them be unable to care for “Buddy” on their designated day.
As always, if agreement can be reached outside of Court, the related parties will save a lot of time, emotion and cost.
Source: thelawyermag.com
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