Pets are an important part of family life. When the family unit breaks down, this impacts on our pets as well as on us. The shock, uncertainty, grief and loss that we feel is also communicated to our pets. Stable routines will falter, consistent positive attention will crumble, and the overwhelming sense of change, and chaos will be all pervasive.
In the same way that we must consider arrangements for our children, we must also make arrangements for our pets. Children can spend time with grandparents, extended family and other friends, while we work on our next steps, but there is not always a way to give pets time out when the focus must be on our own internal struggles and where these will lead. A cat cannot be taken to the park for a run, a dog is not going to sit quietly in the corner of grandma’s lounge room, and a bird or fish cannot easily be carted off to our bestie’s place around the corner.
We are encouraged to take into account the needs of our children when we work towards our new life, but there is not the same focus on what our pets need and what might be in their best interests.
The reality is that in many situations, the pets are the last to be considered, and sometimes not considered at all.
The recent changes to the Family Law Act around pets seek to acknowledge the importance of pets in the separation landscape. They are dealt with under the property sections of the Act, but as a specific type of property, with various factors relevant to take into account such as:
- the circumstances in which the pet was acquired;
- who has ownership or possession of the pet;
- the extent to which each party cared for, and paid for the maintenance of, the pet;
- any family violence to which one party has subjected or exposed the other party;
- any history of actual or threatened cruelty or abuse by a party towards the pet;
- any attachment by a party, or a child of the marriage, to the pet;
- the demonstrated ability of each party to care for and maintain the pet in the future, without support or involvement from the other party;
- any other fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account.
These considerations provide greater guidance as to what to look at when trying to work out the best arrangements for pets. But it is a limited approach as the only orders that the court can make relate to ownership of companion animals. The court cannot impose orders about other issues such as spend time, as is the case with children and parenting arrangements, but agreements are different .
One way to minimise the difficulties of making arrangements for pets when overwhelmed with the separation, is to talk about these in advance, as many couples do in relation to assets and children.
My sense from the enquiries that reach me, is that more and more couples are entering into relationships with a clear idea of how they want to deal with their assets during their relationship, and if and when they separate. It makes perfect sense to include arrangements for our beloved pets in these agreements. They could cover
- ownership
- financial responsibility
- responsibility for the day to day care and attention
- arrangements in the event of separation or living in separate residences.
There is no reason why a Pre-nuptial Agreement, a Cohabitation Agreement, a Financial Binding Agreement or a Parenting Plan cannot contain provisions for our pets.
At the commencement of a relationship many assumptions are made about what the future will look like. As separation is acknowledged as a big part of modern life, more often nowadays, parties are seeking clarity at this time regarding what issues they should consider to avoid confusion and conflict down the track.
When I am approached to provide advice around clarity for assets when entering into a relationship, I raise the issue of pets. When there is a discussion about managing a joint household and managing the responsibility for different roles within a relationship, I ask about the likelihood of pets becoming part of the picture. When dealing with separation I raise the issue of how to guide these matters to assist at this time of great uncertainty. Guidelines on any issue can assist greatly, but is difficult to do in moments of emotional distress.
Family members who have lived with pets throughout the relationship have the wisdom as to the best outcomes for them. They can reach agreements as to these outcomes at any stage of their relationship- at commencement, during, at the point of separation, or afterwards- and incorporate these proposals into an Agreement. This provides some certainty that they are not stuck with, but can revisit, review and amend as their circumstances change and shift.
Examples of provisions that could be included in an Agreement could include:
- Jock will continue to have his home base with Fiona and the children Fergus and Catriona;
- Jock will spend time with Bruce when Fergus and Catriona are spending time with him;
- Bruce and Fiona will
- share equally all vet fees involving Jock;
- each be responsible for all other costs associated with Jock when he is in their care
The best provisions for each family will depend upon their unique circumstances. The best interests of pets are not identical to those of our children, and need to take into account the appropriate behavioural principles relevant to pets. They live in the moment and are generally not concerned about the past or worried about the future. They need reliability and predictability.