In a recent decision of the Federal Circuit Court of Australia, the age-old questions of whether man’s best friend is considered property and who gets to keep the family pet after separation have finally been answered.
In the case of Downey & Beale [2017] FCCA 316, the husband and the wife reached agreement on the division of all joint property bar one asset, their pet dog, whose name was anonymised for the purpose of the judgment, but we will call Fido.
Fido was purchased by the husband as a birthday present for the wife prior to their marriage, but was never registered in either the wife or the husband’s name during the relationship. Somewhat opportunistically, and noted by the Court as a self-serving act, the husband registered Fido in his sole name approximately 8 months after separation occurred. However, Fido was living with the wife at that time and remained living with the wife up until the time of the hearing. On that basis, the Court declined to infer that the husband’s purchase and subsequent registration of Fido demonstrated that he was Fido’s owner at the time of the hearing.
The Court preferred the wife’s evidence at the hearing that, following purchase of Fido, he lived with the wife at the wife’s parents home. While the husband agreed that Fido lived at the wife’s parents home after his purchase, he asserted that Fido lived with both the husband and the wife at the wife’s parents home. The wife disagreed, asserting that the parties were not living together at that time, and only commenced living together at the time of their marriage, thus Fido had lived with the wife as her property prior to marriage.
Although the Court cited Abraham Lincoln’s Emancipation Proclamation when noting that Fido was amongst four classes of sentient beings capable of being the property of others, the Court noted that it beggars belief to contemplate how the property settlement division of the Family Law Act would be of assistance to determining the dispute without placing a value on love and affection, and expressed hope that “…in this neoliberal world that we have not yet come to the point where even love and affection are commoditized”.
The Court nevertheless proceeded to apply the property settlement division of the Family Law Act and the decision of Stanford v Stanford in determining that it was just and equitable for Fido to remain the property of the wife based on the contributions which she had made to the “…maintenance and improvement of the asset…” during the relationship.
In doing so, the Court took into consideration:
- The wife’s evidence that she had desired to adopt a puppy, the she had subsequently searched for and found Fido online, that something about Fido had appealed to her and that she arranged to see him;
- That the husband had gone with the wife to see Fido and had purchased Fido as a present for the wife, following which Fido lived with the wife at her parent’s home;
- That, although Fido had not been purchased or registered by the wife, she had tendered bank statements and bills at the hearing which indicated that she had paid Fido’s vet bills, purchased items for Fido, and met similar expenditure clearly related to Fido; and
- That the wife had made direct financial and non-financial contributions to Fido’s care.
On that basis, the Court was satisfied that there should be no order adjusting the wife’s interest in the chattel comprising Fido, which would remain in the possession and ownership of the wife.
The Court also noted that although the Section 75(2) future needs factors in the Family Law Act (such as age and state of health of the parties) could not assist in this case, one could contemplate a situation where these factors might come into play, for example if Fido was a service animal such as a Seeing Eye dog.
