Who should get custody of a pet when a couple splits up?

The demise of a long-term relationship or marriage can be difficult enough, but when settling the often equally fraught discussion around who gets what, there can be added heartbreak if a beloved pet is involved. So, what legal recourse does an ex-flame have if they do (or don’t) want to keep the four-legged or feathered baby?

Are pet custody battles “a thing”?

Yes, most definitely. Just last month, a landmark case of a Spanish couple who had split after 20 months saw the judge grant joint custody of their black-andwhite border collie Panda, who will now spend a month at a time with each partner, and the pair will share vet bills.

The case is important because it takes legal strides toward recognising pets as “sentient beings” rather than property.

In the judge’s ruling, it was found that “formal ownership cannot prevail… [over] the affection of the petitioner”.

Things are different in Australia.

Currently, no legislation guides courts on living arrangements for pets postseparation.

“Animals are treated as property in settlements here,” family lawyer Kasey Fox tells Body+Soul. “If this case happened in Australia, the court would likely decide which person keeps the dog.” She cites the 2017 case of Downey vs. Beale, in which the spouses couldn’t agree who got the dog; after consideration of who bought the pet and paid its ongoing costs, the wife prevailed.

But how do we determine the animal’s best interests?

Some judges have unusual methods. In a custody case over a stolen dog, TV’s Judge Judy famously had the pet brought into court and then granted ownership to the person it ran to: the original owner.

But when it comes to a break-up, the experience is often as unsettling for the dog as it is the humans, says dog trainer Justin Jordan. “Separating couples need to put their emotions aside and prioritise the interests of the dog,” he tells Body+Soul.

As he points out, there’s “no dog on the planet” that doesn’t experience separation anxiety, and dogs never bond to both partners equally, so it’s usually best that a dog stays with one partner. There are exceptions, depending on breed and temperament, he adds, but as a general rule, joint custody suits the owners more than the dog. “Some dogs won’t mind as long as they receive love and attention.

But it’s more the exception that the dog doesn’t mind moving between houses.”

While his title is “dog trainer”, Jordan says the most important part of his job is training humans. “Sometimes we sit down with the [estranged] couple and explain the dog is better staying with one person,” he explains. “Especially when we suspect an aggrieved partner is pushing for custody to get back at their ex.”

What about the fight for felines?

Cats, Jordan admits, are easier: “They’re so independent that as long as you feed and water them, they’re generally happy.”

In the case of Damian and Harry*, who split after nearly two decades, they had to determine who would end up with their two cats. Ultimately, Harry moved interstate, and announced that the pets wouldn’t be joining him.

“It was frustrating,” Damian tells Body+Soul. “He told me that because I’d broken up our happy home, I was the one responsible for the ‘children’ we’d chosen to have. So here I was, saddled with two cats – along with bills for their food, litter and vet appointments. And he got to go on with his life as if they’d never been around.”

Ultimately, they reached a resolution, and Harry agreed to continue footing the monthly pet insurance bill. “Once the dust settled, it made sense,” Damian adds.

“[The cats] were always more bonded with me; and he said he understood that I was burdened by the ongoing cost of keeping them looked after.”

Are there ways to ensure you’re preferenced in a custody battle?

Yes, according to Courtney Mullen, the head of family law at Australian Family Lawyers ACT. She says there are steps you can take if you want to be judged the legal owner, but adds that it’s wise to be fully transparent about it with your partner: “Ensure you buy or part-buy it, register the pet in your name and have the insurance policy in your name.”

*Names have been changed.