It’s not just us who argue about pet custody when a relationship fails, scandal rags love a story about celebrities fighting over their pets, remember Pistol and Boo? If you relate more to the movie ‘Who Gets the Dog’?’ than ‘Kramer vs Kramer’ a ‘pet nup’ might be for you.
Whether you bought your pet with your partner or owned it before the relationship began, it’s difficult to agree to whom the pet should belong if your de facto relationship or marriage ends. Since 10 June 2025, there have been significant amendments made to the Family Law Act 1975 (Cth), meaning that pets are no longer treated merely as chattel. The Family Law Amendment Act 2024 introduces the concept of “companion animals”, granting courts new authority to make specific orders in property settlement cases.
While pets remain legally classified as property, the Court must now consider a broader set of factors beyond ownership or purchase, such as:
- Who performs the daily care (feeding, walking, vet visits, etc.),
- The emotional attachment between the pet and each party (including any children),
- Any history of cruelty, abuse, or family violence, potentially affecting the pet’s welfare,
- And each party’s demonstrated ability to continue caring for the animal independently.
Under this new framework, the Court is no longer confined to rigid notions of “ownership” based on receipts or registrations. Instead, orders relating to companion animals can reflect the real-world dynamics of care and emotional bonds, and in some cases, arrangements can be designed to serve the best interests of all parties – including the pet.
Depending on the circumstances, the Court may now:
- Order that only one party retains ownership and full-time care of the pet;
- Allow for the transfer of the animal to a third party (such as a family member), if both parties consent;
- In rare cases, order the pet to be sold, although this is increasingly disfavoured given animals are no longer seen as mere assets;
- Facilitate or endorse shared care arrangements, where parties alternate time with the pet (such as alternating weekly schedules, or weekday/weekend splits), similar to a parenting plan.
However, shared custody of pets is not without controversy. While Courts may acknowledge emotional attachments on both sides, they remain cautious about imposing complex shared care arrangements in litigation. This is primarily because:
- Enforcement can be difficult (unlike parenting orders, there is no statutory enforcement mechanism for a pet-sharing dispute),
- Shared arrangements may prolong contact between hostile or abusive parties, increasing emotional strain,
- The inconsistency and instability (such as frequent moving between homes) can be distressing for some animals, particularly those who struggle with separation anxiety or change in routine.
As such, shared care of pets is more likely to be negotiated privately or included in a Binding Financial Agreement, than ordered by a Court after a contested hearing. Still, these reforms open the door for flexibility and creativity, allowing separating parties to make arrangements reflecting not only their legal rights, but the emotional reality of their bond with a pet.
The best way to ensure your pet remains yours is by entering a ‘pet-nup’ with your partner prior to any separation. This will make sure you can avoid any arguments or confusion in the future. A pet-nup is a Binding Financial Agreement (BFA) and can be entered before, during or even after your relationship. Both you and your partner will need to obtain legal advice so that the pet-nup is legally binding. While your pet-nup focuses on your companion animal, a BFA can also include other financial agreements you and your partner may wish to make, click here for more information about BFAs.
What can you include in your pet-nup?
Your pet-nup can cover the ownership, custody and costs of a pet. You may include extensive clauses in your pet-nup ranging from who gets custody of the pet after separation to who will be responsible for paying the veterinary bills.
This means, if you brought the pet into the relationship, a pet-nup can strengthen your claim to keep them. If you and your partner acquired the pet together, the agreement allows you to agree on terms ahead of time, helping you avoid confusion, conflict or costly legal disputes down the track. A pet-nup if properly prepared is an agreement that can be enforced by the Court if there are any breaches.
We love our pets, so why not take steps to protect your relationship with them?
If you need to discuss pet custody issues or any other issues arising from a family breakdown, please call us on 1300 654 590 or send us an email, an experienced and helpful lawyer will be able to help you to get your best outcome.
The information contained in this post is current at the date of editing – 4 August 2025.
