The Senior
FOR many older Australians going through a separation, the most agonising decision is not dividing superannuation or selling the family home, it is deciding the fate of a beloved companion animal.
With “grey divorce” on the rise, more couples are finding themselves in dispute over pets that have long been treated as part of the family, rather than property.
As of June 2025, Australian family law no longer treats pets purely as assets. Instead, companion animals are recognised under the Family Law Act in a way that reflects their emotional significance. However, courts still do not have the power to order shared custody of pets. They can only award ownership to one party or, in some cases, order that the animal be sold or rehomed.
Family law barrister Darren Mort said shared arrangements are possible only through mediation, not court orders.
“In mediation, you can effectively agree on anything, shared care or alternating weeks,” Dr Mort said.
“Provided it’s completed in the proper format, that agreement is a contract and it’s a binding contract.”
In contrast, courts are required to finalise ownership rather than facilitate ongoing shared arrangements between former partners.
When determining who should keep a pet, courts consider a range of factors, including who provided day-to-day care such as feeding, walking and grooming, as well as veterinary history and financial responsibility.
They also assess the strength of emotional bonds between the animal and each party, along with each person’s health, mobility and capacity to continue providing care.
Dr Mort said that in some cases, age and physical ability can influence the outcome.
“Although a dog might be closer to one party, if that party’s not able to care for that dog anymore, that has some bearing,” he said.
“It’s grossly unfair, but if you can’t look after the dog, it’s not fair on the animal.”
The court may also take into account any history of family violence or animal cruelty when making a determination.
Certain animals are treated differently under the law.
Assistance animals, such as guide dogs for people with disabilities, are excluded from separation disputes altogether.
These animals are considered medical necessities rather than pets, and remain with their handler regardless of financial or ownership considerations.
For couples hoping to maintain some form of shared care arrangement for a family pet, legal experts say mediation remains the most practical option.
“If I was hedging my bets with the family pooch, I’d be seeing if I can go to mediation and try to sort it out,” Dr Mort said.
