Towards an Animal-Friendly Family Law

Abstract

Companion animals have assumed a pivotal role as legitimate members of the family in contemporary Western liberal societies, including Australia. However, the legal position of Australian family pets following family breakdown has largely gone unexamined. Even though their welfare is promoted by animal protection laws, Australian family courts do not currently need to explicitly consider the welfare of companion animals when deciding their post-separation placement or ownership. Drawing upon the emergent field of animal law, as well as developments in North American family law, this article argues that Australian family law should not simply regard companion animals as equivalent to any other piece of personal property requiring distribution between the parties upon separation or divorce. In particular, this article proposes that specific provisions should be inserted into the Family Law Act 1975 (Cth), distinct from existing provisions relating to the property and human children of the parties, stipulating that family courts explicitly consider the welfare of family pets in allocating them to the parties. Ultimately, the effect of treating family pets differently from personal property would be to acknowledge that companion animals are not merely chattels but, as living beings that are dependent on their human owners for their future welfare, are instead very similar to human children and therefore also require special legal protection and attention in family law proceedings.