Custody of family pets in a separation

by Maretta Twentyman & Debbie Dunbar - Morrison Kent

A Canadian court was recently asked to decide who should get to keep the family dogs in a separation. In that case, the wife wanted to treat it like a dispute about children and asked the court to award her custody and her husband access. The Judge declined to do this, and warned that if they could not reach a decision on where the dogs should go, it was possible for the court to order that they be sold and the proceeds split. So, how would a New Zealand Family Court approach this issue?
In New Zealand, similar to Canada, family pets are classified as property and “family chattels” under the Property (Relationships) Act 1976. In qualifying relationships, this makes them subject to division and the equal sharing rules.
Most of the time people are able to agree on who should keep the pets, however there have been a few cases where the court has been asked to decide. They have tended to approach it in a way that would accord with most people’s sense of reason – by holding that the welfare of pets is the primary consideration. This is similar to the way they approach child custody disputes. While they have not gone as far as to order custody to one party and access to another, they look at the broader circumstances and decide which home would be best for the pet in question.
In a 2012 case where a couple were unable to agree who should keep the dog, the Judge took into account their respective living situations. The dog was said to be an “outdoors dog” who relished a country lifestyle; and had in fact been living with the respondent in the country for the last two years. By comparison, the applicant had no permanent abode and was likely to live in an urban setting in the future. On that basis, the Judge decided it would be in the dog’s best interests to remain with the respondent. 

In summary, while our courts seem to take a sensible approach to disputes over family pets, they would be unlikely to entertain long drawn-out custody battles about them. Other issues may arise such as the valuation of pets, or whether they can be classified as something other than “family chattels” if they have an earning potential and are used for business purposes. The answer will depend on the particular facts of the case, so it is best to seek specific legal advice about your situation. 

If you would like any further information or advice please contact either of the article authors: Maretta Twentyman or Debbie Dunbar, or the Morrison Kent Wellington office (04) 472-0020.

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