The Rise of Pet-nups: Who Gets to Keep the Dog After a Separation or Divorce?

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With a large portion (44 per cent) of non-parent millennials aged 18 to 49 saying it’s unlikely they’ll have children, more are opting to welcome fur babies into the family instead.

Some even go so far as to include their pets in their wedding day celebrations, take them on holidays and treat them to a host of presents for their birthday and Christmas.

But with the average marriage only lasting 12 years and divorce rates being the highest in a decade, it can be helpful for coupled pet owners to agree on what will happen to their beloved pet should they separate.

Because it’s a common question – who gets the pet if you part ways?

As a result of this there has been a rising trend in pet-nups, which is essentially a financial agreement, like a prenup, that outlines what will happen to a couple’s pet if they part ways.

Gary Yan, Partner at Coote Family Lawyers, explains to 9Honey Pets that they are designed for pet owners who are concerned about who will keep the pet in the event they separate. So they choose to enter into a financial agreement to define how their assets will be divided and include their pet within this.

“Over the last couple of years, demand for addressing pets in legal agreements has been steadily rising,” Yan tells us.

With an estimated 30 per cent of households adopting a pet during the pandemic, it makes sense that more people are wanting to protect and keep them should their relationship not go the distance.

So what exactly do pet-nups protect against?

“Pet owners can care very deeply about their animals – much like they would any other family member – so deciding on who keeps the family pet after separation can be difficult and add to an already stressful situation,” Yan says.

“If you have a legally-binding agreement in place that specifies who will take the pet in the event of separation, ownership disputes can be avoided. Exes can spend a lot of time and money fighting over who gets the dog or cat, so an agreement can help make the separation process smoother.”

When it comes to writing a pet-nup, Yan explains there are a few things involved.

“For pet lovers this might sound a touch cold, but the Family Law Act defines animals as property. This means the law considers them as part of a property settlement – just like they would household items – rather than a child or family member where the ‘best interest’ principle applies,” Yan says.

But people typically don’t enter into financial agreements that address their pets alone. They are likely to also think about how they can protect and divide their other assets, such as pre-relationship assets and even future gifts and inheritances they may receive.

“Couples can also enter into an agreement that doesn’t specifically name the pet, but instead outlines how future assets or belongings they acquire during their relationship will be shared if they break up,” he says.

“For example, a couple might agree that each person gets to keep all assets they have paid for, and which are held in their name. In this case the person who paid for the pet, and has the pet registered under their name, can claim it’s theirs to keep.”

Outside of financial agreements, people can also enter into a private agreement for sharing the care of their pet post breakup.

“Some clients will split the care of the pet based on their children’s living arrangements, so the pet will move between households with the child,” Yan says. “Many of my clients without children will also share the care of the pet, or at least allow some visitation.”

But what if you don’t have a pet-nup? Is there a way to work out who will get the pet in the event of a separation, where no shared agreement can be reached?

Yan says it comes down to being able to prove who ‘owns’ the animal.

“In cases where a separated couple doesn’t have a financial agreement in place and can’t agree on who keeps the pet, the person who can prove ownership will be granted possession. Ownership of a family pet can be demonstrated through details like who’s name the animal is registered under, and who has paid for the vet care,” he says.

“If you find yourself concerned about losing your pet in the case of separation, it’s important to develop your proof of ownership. Make sure you’re the one that the insurance is registered to, as well as the council and microchip registration. These things will make a difference post break up if both parties are disputing over who keeps the family pet and the Court is ultimately asked to decide on who does.”

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