Posted on 15 Dec. 2016
By Slater and Gordon
One of the hardest problems to solve at the end of a relationship or marriage can be who gets to keep the pet cat or dog.
This would be a simple dispute to avoid if, at the start of the relationship or marriage, there was a legally enforceable agreement specifying who is to keep the pet.
Everyone will have heard about "Pre-nups", jargon for Binding Financial Agreements under the Family Law Act, where you agree at the start of the relationship or marriage on how the whole asset pool is to be divided if there is a separation.
One of the main problems with enforcing a Pre-nup a long time after the commencement of the relationship/start of the marriage is that, when you sign up to the Pre-nup, it is uncertain what the future assets will be. That overlays a significant amount of uncertainty, and can be one of the key reasons why a Pre-nup could be set aside later on.
How does this apply to your pet?
A little used provision in the Family Law Act allows people to have a Binding Financial Agreement that is limited to just one asset. You are not required to cover every asset that each side has, or will have in the future, although that is what most Pre-nups try to do.
So, for example, you could have a Binding Financial Agreement at the start of a relationship or marriage that simply specifies who is going to get a specified pet. If the pet was clearly identified, for example by reference to its registration number, so long as the pet was still alive at the end of the relationship or marriage, then the Binding Financial Agreement would be clearly enforceable and would avoid any dispute about ownership.
If neither side owns a pet at the start, you could potentially say in the agreement that if a pet is purchased during the relationship/marriage then the person with proof of payment of purchase gets to own the pet.
Binding Financial Agreements entered into at the start of the relationship or marriage that says who gets to keep the pet could be described as a “Pet-nup”. Maybe, if it is an agreement about who gets to keep the pet dog, you might describe it as a “Pup-nup”.
Things to remember
If you just have a Pet-nup, remember that everything else you own gets divided after separation either by agreement at that time or by the court.
It is important to remember that the law does not enable legally enforceable "visitation" rights for pets to be agreed to. The law only specifies who gets to own a pet. In that regard a pet is really no different to some other asset, such as a car or boat. So if you sign up to a “Pet-nup”, that says who gets to keep the pet cat, and what the visitation rights are for the other person, the part about visitation rights will not be legally enforceable, but the part about ownership will be.
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