WHO LETS THE DOGS OUT? What Happens with our Pets when we Separate?

12th October 2022

With almost as many pets as people – 4.35 million as of 2020, and second only to the United States when it comes to the percentage of households with pets (64% to USA’s 67%), we sure do love our canine and feline companions! They become a major part of our everyday lives and add so much to our relationships – making it that much more difficult to decide what to do when you and your partner go your separate ways.

 

Under Section 2 of the Property (Relationships) Act 1976, household pets are deemed to be family chattels, therefore being subject to division and equal sharing rules (so long as your relationship has lasted 3 years or longer). That’s a bit easier said than done in the case of a pet…

 

In most cases, we’re able to come to an agreement on who keeps the pets, and there are some primary considerations:

 

The Pet’s Welfare

It often has to be reiterated to relationship property clients that the division of property isn’t a “point scoring” exercise. You don’t win some shiny trophy for getting more than your ex in the separation. That notion is especially important when it comes to your pet – just as the child’s welfare is the primary concern, the same goes for pets. This was established in the case of Sydney v Sydney [2012] NZFC 2685.

 

While no New Zealand court has gone as far as to order custody to one party and access to another, they will look at the respective living situations. If your dog is the second-coming of Lassie and one of you lives in a high-rise apartment building, well…

 

Breeding for Bread?

While this has yet to be addressed in New Zealand courts, pets may be classified as something other than family chattels if they have an earning potential and are used for business purposes. If you and your partner were breeding puppies and selling them, this might change the picture a bit, and you would want to seek specific legal advice.

 

New Zealand Legal Developments?

While we have yet to see these specific changes implemented, in 2019 the Law Commission released a report recommending significant changes to the Property (Relationships) Act. This report addressed the issue of pets and suggested a test for determining who gets to keep the pets after separation. Interestingly, this test requires the court to consider which family member has the closest relationship with the pet. With this bizarre test in mind, our very sage legal advice is to stock up on dog treats.

 

So, while it takes two to tango when it comes to your turtle, and you and your ex-partner might both yearn to keep your kitten, the Family Court has given some guidance around this matter to address that the primary consideration will be the pet’s welfare.

 

If you’re concerned about what might happen to your pet in the case of a separation, McMillan&Co. has a team of experienced family lawyers who will be able to help you out.

 

Charlie Hantler, Senior Solicitor

charlie@mcmillanco.nz