Separation is a fraught time of high emotion where a relationship, companionship and love and affection are all being ended but that is just your ex, what about that other source of affection – the loyal, lovable and much revered family pet. In a time when Pets are often replacing children in the family unit the loss of this relationship can be even more emotionally traumatising than the end of the romantic relationship.
In Australia the family Pet is considered to be property and will be divided at separation just like the lounge suite and the family car. In other countries there is beginning to be a move away from this stark categorisation, for example The Civil Codes of Austria, Germany and Switzerland all consider dogs to no longer be “mere property”.
Australia has not been this progressive however at least one Judge of the Federal Circuit Court has noted that maybe a change should be in the air. Judge Harman in Downey & Beale  FCCA 316 observed that, at least in the English-speaking world, as recently as Lincoln’s Emancipation Proclamation, there were four classes of sentient creature who were capable of being the property of others:
- People, (especially people of colour) bonded into slavery.
- Women, who in many circumstances were not permitted to own property of their own and were seen in many contexts and in many jurisdictions as the property of their husband upon marriage (and prior to that the property of their fathers).
- Children; and
- Animals, including companion animals (pets)
It was observed by Judge Harman that only the 4th Category, animals; remain classified as the property of their owners rather than having some more temporal existence with consequent rights. Could this then mean that like People, Women and Children we will move toward pets being separate to their owners and the arrangements for their care in the event of a separation be considered more as we would consider the arrangements for Children, focusing on their “best interests” rather than simple “ownership” and value for a property division.
When considering the family pet it is rare for an argument to be made that the value of the animal is monetary, with the exception of breeding dogs where they have a proven history of creating an income stream. This failure to assign a value is appropriate given the real value of the family Pet is not monetary but rather a persons love and affection for the animal. Judge Harman quoted Roger Caras in this regard – “dogs are not our whole life, but they make our lives whole”.
So for now the family pet remains to be assigned to one person or another but in the future anything is possible and we may see people negotiating care arrangements similar to those already used in Children’s matters.