What becomes of the beloved family pets when couples part? As much as you would like to believe it, your pets are not actually children and the Care of Children Act 2004 does not apply. Consequently, seeking parenting orders for the care of “Buddy” through the Family Court is not an option. The Property (Relationships) Act 1976 (PRA) includes household pets within its interpretation of “family chattels”. Buddy, being a chattel, is relationship property and can be included in negotiations for division during the separation process.
However, the Courts have taken a more practical approach. The bond parties form with their pet is considered, as is the fact that Buddy is a sentient being. This is in stark contrast to the relative lack of attachment to the inert set of drawers which springs to mind when one thinks of a ‘chattel’.
In Sydney v Sydney [2012] NZFC 2685, Mrs Sydney sought a form of shared care over Milo, but Mr Sydney disagreed, as this would require him to have ongoing contact with Mrs Sydney. The PRA’s “clean break” principle came into play here. Although both parties harboured strong emotional attachments to Milo, ultimately the Judge considered what would be in Milo’s best interest. The Judge decided that Milo, who had resided with Mr. Sydney for the past two years and was clearly attuned to an outdoor lifestyle, would continue living with him. A monetary adjustment of $425 was granted to Mrs. Sydney, representing half of Milo's value.
In Wilkinson v Wilkinson [2021] NZFC 8995, the family court considered the care of Nelson and Eric. Nelson and Eric had respectively been in the long-term care of the parties. Mrs Wilkinson wanted a clean break and for both dogs to remain with her. The Judge conveyed that there was “lot of grief expressed during the hearing” and “a place of sadness for both parties is around the changed care and control of Nelson and Eric”. The Judge accepted that both parties miss the dog who is in the care of the other parent, and both parties are sensitive to their lovely pets. Ultimately, favouring the “clean break” approach and acknowledging that this decision may sadden the respondent, the Judge decided that Nelson remained with the applicant, and Eric with the respondent.
The Family Court’s jurisdiction over pet care decisions following separation is evident. However, these are cases where the parties were not able to mutually agree to division of relationship property, commenced court proceedings and went all the way to a hearing. There is no reason why in cases of an amicable separation, the parties cannot mutually agree to a shared care arrangement of their beloved pets. This can be implemented by way of a separation agreement under the PRA particularly if there remains some form of reasonably amicable relationship between the parties, such that ongoing contact between them for that purpose can be achieved for the sake of their ongoing connection with their pets.
