In the recent case of Downey and Beale  FCCA 316 Judge Harman heard a marital property settlement case where the husband and wife were able to reach an agreement on everything – except who would own the pet dog (for purposes of this blog entry, we will call the dog “Sam”). For that purpose, Sam was considered a chattel of the marriage.
The Court needed to determine who owned Sam. The adoption fee of $300.00 was paid by the husband, however payment of a fee does not necessarily determine ownership. The wife argued that Sam was purchased after the parties met, and on her expressed wishes; on seeing Sam, the husband decided to purchase him for the wife as a birthday present; further, Sam remained living with the wife and her parents after separation and remained in her possession. The wife also tendered evidence showing how she had met various expenses associated with the dog, such as vet expenses and purchase of items for him.
However, the husband asserted that he was always Sam’s owner and provided evidence of registration in his name, notwithstanding that the registration was undertaken some eight months after separation and when Sam was in the wife’s possession.
Harman J reflected on the legal requirements that need to be met to denote ownership of a dog. Section 7 of the Companion Animals Act provides a definition of “owner” being the person by whom an animal is ordinarily kept or the registered owner. According to that definition, the husband was the current owner. At any time prior to the date of registration, the person by whom the animal was ordinarily kept was the owner, and that was clearly the wife.
At the conclusion however, the evidence provided that Sam was a gift, that the wife had contributed to his care , and that he was in her possession at the time of separation and remained in her possession impelled Harman J to make orders providing for the animal to stay in her care and ownership.
From a family law and animal law perspective – both of which are areas of practice for Law Essentials Sunshine Coast – this case was interesting on several levels. Firstly, that a pet is considered a chattel in property settlement proceedings (that is, like an item of furniture for an example). Yet Harman J’s comments revealed an acknowledgement that the pet issue holds a position of great significance for separated couples and families, that dogs (and presumably all pets) are sentient creatures, living beings of fundamental importance. Harman J dwelt on the love and affection the parties had for Sam and his non-monetary worth.
The chattel or property status of animals under the law has a long and well-entrenched history. They are regarded under the law as objects and hence have no legal rights, and are “owned” just like any other inanimate object. This status is clearly at odds with changing attitudes of society where many animals are regarded as family members.
Nevertheless it is the property status of animals which has largely contributed to the inadequacy of the animal protection laws that exist. Although Harman J made the heartening reflections noted above, there was no movement away from the acknowledgement of “ownership” or that the dog was a chattel. One can only hope however that the acknowledgements were reluctant and regretful and therefore a sign of better things to come for how our pets are treated under the law.