Are pets truly members of the family? New provisions relating to ‘companion animals’ in the Family Law Act 1975 (Cth)

Abstract

This article considers the new provisions to the Family Law Act 1975 (Cth) (‘FLA’) that came into effect in June 2025, which recognise ‘companion animals’ as a category of property to be dealt with upon a relationship breakdown. Animals have not been included in the FLA previously; the new provisions are significant as they now recognise the importance animals have in Australian households. This article explores how the family law courts dealt with pets prior to the recent amendments and provides an overview of the new provisions to the FLA. Discussion of the limitations to these provisions will highlight the ways in which the amendments may fall short of community expectations.

Australians care deeply about their pets, having some of the highest rates of pet ownership in the world, with roughly 73 per cent of households owning one or more pets. ¹ It is estimated that 90 per cent of Australians will have a pet in their lifetime. ² In a study undertaken by Animal Medicines Australia, many pet owners stated their pets were ‘like children’ when describing the emotionally fulfilling relationship their animals bring them. ³ This raises questions about what a modern family looks like, and how aspects of family law should reflect evolving societal definitions of a family that do not rely on traditional, heteronormative constructs. ⁴

This article considers new provisions to the Family Law Act 1975 (Cth) (‘FLA’) which commenced in June 2025, ⁵ and provides a new framework under Parts VIII/VIIIAB to make orders for pets as ‘companion animals’ when dividing the property of separated couples. Next, the article explores how the family law courts dealt with pets prior to these provisions, and the matters that were considered when making orders. The third section considers the amendments to the FLA to include ‘companion animals’ as a type of property, via ss 4, 79 and 90SM. Also discussed are the limitations of these provisions, and whether they meet, or fail to meet, society’s expectation of how pets should be treated post-separation.

In the absence of any case law on this subject at the time of writing, the article aims to provide further understanding of what these new provisions could achieve.

How are animals protected and defined in Australian law?

The way that animals are defined and protected in Australian law is highly complex as the protections afforded to animals, and how they are variously defined, are subject to constitutional limitations. The power to make laws with respect to animals is split between the federal or state and territory governments, depending on which legal categories they fit. Animals feature once in the Australian Constitution, relating to the power to legislate on fisheries. ⁶ The remaining power that the federal Parliament has over animals is connected to its other powers generally, and not with respect to animals singularly. ⁷

The constitutional division of powers between the Commonwealth and states and territories has also complicated how animals are treated in family law. In Australian family law, pets are considered ‘property’ or ‘assets’ of a relationship, and laws that deal generally with marriage and de facto relationships can only be made by the federal Parliament. ⁸ In contrast, laws which are directly about animals and their care are in the hands of the state and territory legislatures. ⁹

Despite this division of power between the federal and state and territory parliaments regarding the laws they can make about animals, there is consistency in the classification of animals as objects of the law. Animals are solely considered property or chattels – and have been classified as such since early Federation. ¹⁰

How were animals dealt with previously under the FLA?

Prior to the new provisions, animals were not mentioned in the FLA, meaning there was nothing to differentiate pets from other forms of property. ¹¹ This put animals in the general category of ‘property’, like a car, laptop or piece of furniture – objects that have value and meaning to their owners, but do not require unique considerations when being divided. The definition of ‘property’ in the FLA, has not changed and continues to mean,

in relation to the parties to a marriage or either of them – […] property to which those parties are, or that party is, as the case may be, entitled, whether in possession or reversion. ¹²

Previously, the court’s jurisdiction to make orders relating to animals was only in the context of making decisions for the adjustment of property for couples who had separated, not for animals as a singularly defined form of property. When making orders following a relationship breakdown, the court considered a range of factors under Part VIII/VIIIAB of the FLA to determine how property was to be divided between married, or de facto couples.

These factors continue to be applied today by the court in making orders it considers appropriate, in altering the parties’ interests in the property, under ss 79 and 90SM, ¹³ following a four-stage approach. ¹⁴ First, the court is required to identify the property pool and determine the assets and liabilities, ¹⁵ as well as assess contributions (financial, non-financial, contributions to the welfare of the family, and the effect of any family violence). ¹⁶ Then the current and future circumstances, or ‘needs’ of the parties are considered, ¹⁷ and the overall settlement must be ‘just and equitable’. ¹⁸

Prior to the amendments, the lack of a specified approach within the FLA in ‘dividing’ pets, left a legislative gap as to how animals were to be treated following a relationship breakdown. Accordingly, there is limited judicial comment on pets and what the court’s jurisdiction was previously. Using the AustLII database, relevant cases were identified before the commencement of the new provisions by searching for the terms ‘pet’ or ‘animal’. ¹⁹

This resulted in 12 cases where judges had discussed animals in property proceedings before the court. ²⁰ From the available case law, ²¹ the issues can be categorised in two ways that showcase the approaches of the court when making orders: (i) utilising former ss 79(4) and 90SM(4) to consider the parties’ monetary contributions in property settlements, or (ii) making orders for pets only in relation to the ‘best interests’ of the child under s 60CC.

Considerations in ‘property settlement’

Of the 12 cases found, four had orders made due to the financial contributions of the parties or the current financial ability of the parties to care for the pet. ²² When there was little dispute regarding who the animal should ‘live with’, with either party willing to take on that responsibility, the court would determine ownership of an animal through the parties’ contributions towards its ‘acquisition, conservation and improvement’. ²³ This could include monetary amounts disclosed by a party, for example: insurance payments or other bills related to the pet. This contribution could also have been attributed to whoever purchased the pet, regardless of monetary contributions after the parties formed a relationship. ²⁴ In Day & Jacobsen, Newbrun J noted the emotional significance and attachment that one of the parties had with the pets, despite awarding the pets to the other party due to their increased monetary contributions. ²⁵ Boymal J stated that a pet’s inherent ‘value’ is in their emotional and sentimental connection to their families, ²⁶ making it hard to measure the true value of a pet when dividing it as ‘property’. ²⁷

Considerations regarding the ‘best interests’ of children

Orders were made in three of the available cases based on the connection that the children of the relationship had with the family pet/s. ²⁸ As such, the court considered the connection the child/ren had with the pet (in conjunction with making parenting orders) and awarded the pet to live where the child did. ²⁹ In Jarvis & Weston, the father sought orders for ‘living arrangements’ for the family dog. Moore J stated that there was no inherent jurisdiction of the court to make orders for pets under the FLA. ³⁰ Orders were eventually made due to the child’s mental health, as they expressed concern that the dog might pass away in the care of his father and experienced anxiety relating to leaving the dog. ³¹ Moore J was persuaded to ‘attach’ the dog to where the child lived, as this is what was in the child’s best interests. ³²

Conversely, Curran J refused to make an order regarding where the family pet was to live, as it would have caused further tension between the parents, likely affecting the children and which would not have been in their best interests. ³³ Her Honour went on to say that the court did not have the jurisdiction to deal with pets in parenting orders, where property settlement had already occurred. ³⁴ Where there was an absence of children, the court could not assess where a pet was to live based on a ‘parenting’ approach, as they were wholly considered property. ³⁵

The Family Court’s treatment of pets, pre-2025

In the remaining five cases, no orders were made regarding the pet/s. This was for varying reasons, yet judicial comment often pointed to the lack of jurisdiction the court had in making specific pet orders. ³⁶ Despite the identifiable categories present across available case law, no clear precedent was set in what the courts should consider in property settlements involving pets. ³⁷ These limited comments by the court emphasise the difficulty faced in approaching the role of pets in family law as ‘sentient chattel[s]’. ³⁸

Prior to the 2025 amendments, there were clear limits to the court’s involvement in property settlements, due to the FLA’s lack of animal-related provisions. Particularly, the court did not have jurisdiction to consider the attachment of parties to the relationship with their pets, when making orders in property settlement. ³⁹ This categorisation of pets as solely property shows that, while they may be considered members of the family in social contexts, ⁴⁰ this was not recognised within the provisions of the FLA.

Analysis of ‘companion animal’ inclusion in the FLA

The Family Law Amendment Act 2024 (Cth) formally came into effect on 10 June 2025. The Bill’s Explanatory Memorandum noted that the 2025 amendments aim to

provide clarity about how family pets are treated in property proceedings under Parts VIII and VIIIAB of the Family Law Act. These amendments will recognise the unique character of family pets as valued members of many Australian families. ⁴¹

The following parts of this article involve an analysis of the 2025 amendments to the FLA. The first part explores the new definition of ‘companion animal’, and what this will mean for the FLA moving forward. The second analyses what orders the court can make under ss 79(7) and 90SM(7) regarding pets in property settlements, including what the limitations of these orders can be. The final part discusses what the courts are to consider in making orders for ‘companion animals’, and the perceived limitations of these considerations in future property settlements.

Definition of ‘companion animal’

Pets continue to be considered property under Part VIII of the FLA in property settlements between parties, but are now given the term ‘companion animals’, which are defined as:

An animal kept by the parties to a marriage or either of them, or the parties to a de facto relationship or either of them, primarily for the purpose of companionship, but does not include:

(a) an assistance animal within the meaning of the Disability Discrimination Act 1992; or

(b) an animal kept as part of a business; or

(c) an animal kept for agricultural purposes; or

(d) an animal kept for use in laboratory tests or experiments. ⁴²

The legislators have chosen the wording ‘companion animal’ and not ‘pet’ in these amendments. The Explanatory Memorandum states that this term was intentional, as ‘companionship’ is the primary reason people choose to have a pet. ⁴³ The term ‘companion’ in this context, is taken to have its ordinary and natural meaning. This definition also confirms that ‘companion animals’ are only pets owned by the parties during their relationship.

One of the most significant aspects of these amendments is that the four-stage approach which the court continues to follow for general property interests, does not apply to ‘companion animals’. ⁴⁴ This arguably places pets in a completely separate category in property settlements. No other form of property is dealt with in this way under the FLA, showing that legislators intended animals to be considered differently to general property.

This separation is also present in the FLA’s legislative design, as the definition of ‘companion animal’ distinguishes pets from general property. The wording of subsequent sections also shows this separation, as they include phrases like ‘considerations relating to companion animals’. ⁴⁵ The court is required to place animals in their own category of property with unique considerations that do not apply to general property. This is a significant step forward for animal recognition and the important role animals hold for Australian families, that is now recognised in the FLA.

Making orders for ‘companion animals’

The FLA now includes a dedicated section detailing how the ownership of ‘companion animals’ can be altered under s 79(6), which states:

In property settlement proceedings, so far as they are with respect to property that is a companion animal, the court may make an order (including a consent order or an interim order):

(a) that only one party to the marriage, or only one person who has been joined as a party to the proceedings, is to have ownership of the companion animal; or

(ab) that the companion animal be transferred to another person who has consented to the transfer; or

(b) that the companion animal be sold.

The court may not make any other kind of order under this section with respect to the ownership of the companion animal.

Section 90SM(6) is worded in exactly the same way, yet uses the word ‘party to the de facto relationship’ instead of ‘party to the marriage’. These sections allow for only three types of orders that the court can make regarding pets: that one party to the relationship take care/ownership of the pet; that care/ownership is given to another person; or that the parties sell the pet.

Limitations to ss 79(6) and 90SM(6)

While these changes to the FLA are significant in their recognition of pets, there are limitations in their application – notably, that the alteration of property interests does not allow for the sharing of pets. The court can make orders granting one party ownership or care of the pet, ⁴⁶ yet the 2025 amendments do not address the possibility that parties may want an ongoing relationship with their pet, akin to how parenting orders can be made that allow both parents to spend time with their child if it is in the child’s best interests. ⁴⁷

Orders for spending time with an animal are not too far removed from what Australian families are attempting to seek from the courts. In both Davenport and Castaneda, the court refused to make orders for a ‘shared care’ arrangement between the parties, as pets are solely considered property under the FLA, and to do so would fall outside the court’s jurisdiction. ⁴⁸ The 2025 amendments do not displace this, as it remains outside the court’s power to make orders for shared ownership or spending time with ‘companion animals’.

The FLA is also silent on the ability of the child to spend time with the pet if it is awarded to a certain party. This is further complicated when considering the difficulties the court may face if the child themself owns the pet, and how much weight that fact would be given in property settlement proceedings. According to the Explanatory Memorandum,

an animal can only be a ‘companion animal’ if it is owned by the parties to a marriage or de facto relationship or either of them. Pets owned by third parties who are not parties to the relationship will not fit within this new definition. ⁴⁹

This could mean that pets which are purchased and/or owned by children of the relationship will not be captured by the 2025 amendments. The new provisions also only relate to pets in the context of property settlement and do not have any application to children’s issues where pets may be a consideration. ⁵⁰

Considerations for ‘companion animal’ orders

In making orders under ss 79(6) and 90SM(6) for ‘companion animals’, the court may consider certain factors in coming to a decision about how a pet is dealt with. This is housed under s 79(7), which states that:

In considering what order (if any) should be made under this section with respect to the ownership of property that is a companion animal, the court is to take into account the following considerations, so far as they are relevant:

(a) the circumstances in which the companion animal was acquired;

(b) who has ownership or possession of the companion animal;

(c) the extent to which each party cared for, and paid for the maintenance of, the companion animal;

(d) any family violence to which one party has subjected or exposed the other party;

(e) any history of actual or threatened cruelty or abuse by a party towards the companion animal;

(f) any attachment by a party, or a child of the marriage, to the companion animal;

(g) the demonstrated ability of each party to care for and maintain the companion animal in the future, without support or involvement from the other party;

(h) any other fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account.

Section 90SM(7) is the equivalent provision for de facto relationships. There is no hierarchy stated in the FLA for how the relevant factors under ss 79(7) and 90SM(7) are to be weighed by the court. However, the court is not obliged to consider all factors when making orders regarding pets. ⁵¹

The inclusion and phrasing of the considerations are revealing. The court is now compelled to actively consider the emotional needs of the parties when making orders. ⁵² This acknowledges that animals are important to Australian families, implicitly stating that they have value in ways that cannot be measured in terms of finances alone. ⁵³

The inclusions under s 79(7)(d), (e) and 90SM(7)(d), (e), regarding family violence, are a significant step forward for pet safety, as well as the safety of the parties after a relationship breakdown. It is well understood that family law proceedings may be used as a form of coercion and control over survivors of family violence. ⁵⁴ Similar to how the court recognises the potential for violent ex-partners to use children as a pawn or means of control, ⁵⁵ there is a need for the court to be cognisant of the potential for violent ex-partners to use animals as a means of control too. This will be greatly assisted by the inclusion of these sections in the FLA. ⁵⁶

Limitations to ss 79(7) and 90SM(7)

The effect of these considerations will be revealed through pet-related matters that come before the court. At the time of writing, there has been no judicial commentary on the weight to be given to these considerations. The Explanatory Memorandum outlined that these factors are non-hierarchical and are to be considered ‘holistically’. ⁵⁷ However, the court may weigh certain factors over others in applying these provisions to individual circumstances. For example, considering case law prior to the 2025 amendments, while the court can now consider the attachment of any children of the relationship to the pet, other financial considerations might outweigh the connection the children have with the pet.

Some of the considerations under ss 79(7) and 90SM(7) have similarities to the considerations for children under s 60CC, as they require the court to consider the emotional needs of the family and the ability for parties to care for the pet. ⁵⁸ However, these are still from the perspective of the family, and do not consider the attachments that pets may have to their owners, nor can the 2025 amendments be described as creating a ‘best interests’ approach for pet-related property orders. It is difficult to apply the ‘best interests’ factors to pets, as they have historically only been intended for children. ⁵⁹ This is due to communication barriers between animals and humans, that are not as readily understood between children and adults. However, an existing hurdle that prevents the FLA from achieving a rights-based approach towards animals, is that animals are considered property in Australian family law. ⁶⁰

There seems to be a public misunderstanding as to what these amendments allow judges to do when making orders for ‘companion animals’. The phrase ‘animals are no longer considered property’ has been directly tied to the media’s coverage of the 2025 amendments. ⁶¹ This is not entirely true as ‘companion animals’ continue to be considered property under the FLA. From a theoretical perspective, the amendments are a good first step and do show that legislators are acknowledging the inherent emotional value that animals bring to their families. However, animals continue to be classified only as property under the amendments, and as such, there is no obligation on the court to consider pets as sentient beings.

Conclusion: Where do we go from here?

The 2025 amendments are significant, as the FLA is now acknowledging pets and how they form emotional bonds with their families. However, they do not address other nuanced perspectives of pet owners in Australia who may want to spend time with their pets after a relationship breakdown. How these issues may be addressed will be dependent on the application of the 2025 amendments by the court.

Laws reflect the societal norms that the community values at the time. The community no longer views animals as property, ⁶² but as sentient beings capable of thought, feeling and emotions. The increase in pet ownership, ⁶³ and judicial comment surrounding the intrinsic value of animals to their families, show that the law must change to fit within the current needs of Australians and strongly reinforces the ‘absurdity’ of the legal classification of pets being considered solely property. Yet, there may be some time before pets are fully recognised as sentient beings with value separated from their perceived utility to humans.