 |
| V. Victoria Shroff |
As of June 2025, Australia’s family law legislation incorporated an amended framework that includes companion animal considerations in separation proceedings. This is wonderful animal law and family law news for Australian pets and their families. Interestingly, Australia’s 2025 family laws are incredibly close in wording to B.C.’s 2024 family law amendments involving companion animals. Legislative amendments in both B.C. and Australia have introduced a more holistic and relational approach to determining the care and ownership of companion animals following the breakdown of a family unit. Though companion animals (pets) continue to be classified as property under Australian family law and under B.C.’s legislation, pets are recognized as having an elevated status above that of a mere chattel. Legal considerations extend beyond narrow property ownership principles and take into account the welfare of the companion animal and the nature of their relationships within the family.
Companion animals are family: Beyond property considerations
Companion animals play a meaningful role in the lives of families, bringing joy, unwavering emotional support, comfort, connection, well-being and a sense of stability. As I often state to my animal law students and the media to illustrate my point: pets are not toasters. Animals are sentient animated beings who need to be classified as more than bare property under the law. The strength of the human-animal bond is well-established, requiring no further study to affirm that companion animals are sentient beings.
Increasingly, legal systems around the world are starting to acknowledge animals as more than bare property and taking into account the profound importance of companion animals in people’s lives. Societal norms are putting pressure on courts and legislatures to implement change and to value companion animals as family. In a 2025 precedent-setting tort case in New York about a young dachshund named Duke (RIP) who was sadly killed by a car, a court decided that it was common sense that a dog can be treated as “immediate family” and that a dog’s family could sue for emotional damages if they witness their beloved companion being harmed (Deblase v. Hill). Witnessing Duke being crushed while tethered to him through his leash led to emotional distress that “goes beyond that which is generally felt by loss of mere property,” thus broadening the scope of emotional distress claims involving companion animals. While Duke’s case was not a pet custody matter, the court noted 2021 New York legislation concerning pets as a special category of property when dividing shared belongings in divorce and its application that consider the interests of the pet in question.
Companion animals in Australian family law
Companion animals are core members of Australian families. Surveys indicate that Australia has a high rate of companion animal ownership/guardianship, with an estimated 28.7 million companion animals sharing homes of around 70 per cent of domestic households.
The Australian Family Law Act 1975 defines who companion animals are and who they are not:
companion animal means 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.
Australian courts will now consider factors relevant to companion animals when determining ownership in property settlements, with a focus on companion animal welfare and the relational aspects of the companion animal within the family.
Under s. 79 of the Australian family law statute, eight considerations relating to companion animals are listed.
Considerations relating to companion animals
(6) 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.
Note: For companion animal, see subsection 4(1).
(7) 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.
By way of comparison, B.C.’s family law statute also has an eight-pronged list of considerations for the family pet (Family Law Act, S.B.C. 2011, c. 25).
(4.1) In determining whether to make an order under subsection (1) respecting a companion animal, the Supreme Court must consider the following factors:
(a) the circumstances in which the companion animal was acquired;
(b) the extent to which each spouse cared for the companion animal;
(c) any history of family violence;
(d) the risk of family violence;
(e) a spouse’s cruelty, or threat of cruelty, toward an animal;
(f) the relationship that a child has with the companion animal;
(g) the willingness and ability of each spouse to care for the basic needs of the companion animal;
(h) any other circumstances the court considers relevant. (4.2) An order respecting a companion animal must not (a) declare that the spouses jointly own the companion animal, or (b) require the spouses to share possession of the companion animal.
The overlap between the B.C. and Australian legislation is readily apparent. Both statutes account for the care of the family pet and both statutes highlight family violence, which is highly prevalent in these cases. Just as in B.C., the Australian courts cannot make orders for the shared ownership or care of a family pet. B.C.’s family law legislation states that courts “must not” declare joint ownership or order shared possession of the companion animal (s. 97 (4.2) Family Law Act). This is key not just for finality, but because sharing the family pet or “joint custody” is usually not an optimal outcome and fails to serve the “best for all concerned” test or similar formulation. (For more details on why sharing the companion animal is not a good idea, see: Is sharing family pet ‘best for all concerned’ in pet custody cases?) One example of a difference between the B.C. and Australian laws is that the Australian legislation includes “any attachment by a party or child of the marriage” to the family pet, whereas B.C.’s law focuses on the “relationship that a child has with the companion animal.”
The ‘best interests for all concerned’ test
As previously noted, I view the applicable framework for determining custody of companion animals as one that considers the “best interests for all concerned.” This test or approach goes beyond considering only the human parties and incorporates the history, care and well-being of the companion animal in relation to the humans. The “best interests for all concerned” standard moves away from the traditional “best ownership” formulation to include relational and contextual factors, taking into account the interests of both spouses, any children, and the needs and welfare of the animal involved in the dispute. It very much appears that the amended Australian legislation fits into the holistic “best interests for all concerned” rubric like we have in B.C.
International collaborations bring pawsitive change for companion animals
Over the past several years, I have been invited to speak and collaborate with legal and advocacy groups across Canada, Europe, Asia and the United Kingdom on issues related to “pet custody” or companion animal ownership. Many legal professionals and advocates in these jurisdictions are actively exploring legislative reforms to better reflect the understanding of the human-animal bond in their respective legal systems. When B.C. first publicly introduced its proposed groundbreaking legislative amendments addressing the treatment of companion animals in family law disputes in 2023, I anticipated that another Canadian jurisdiction would likely be the first to adopt “pet custody” provisions into its family legislation. Interestingly, it was Australia that enacted such changes before further developments occurred in Canada. Multi-species families are a reality. The shift to include companion animals in family law legislation signals a nascent but important trend toward recognizing the unique and often pivotal role companion animals play in the lives of families. It is a direction I hope to see embraced more broadly across additional Canadian provinces and in jurisdictions around the world.
V. Victoria Shroff, KC, is one of Canada’s first and longest-serving animal law practitioners and the longest-serving in B.C. Shroff practises animal law in Vancouver at Shroff and Associates. She is also an adjunct professor of animal law at UBC’s Allard School of Law and faculty, Capilano University. Shroff is an associate fellow at the Oxford Centre for Animal Ethics. Recognized locally and internationally as an animal law expert, she is frequently interviewed by the media. Her book, Canadian Animal Law, is available at LexisNexis Canada. www.shroffanimallaw.com | LinkedIn.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the author’s firm, its clients, Law360 Canada, LexisNexis Canada or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
Interested in writing for us? To learn more about how you can add your voice to Law360 Canada, contact Analysis Editor Peter Carter at peter.carter@lexisnexis.ca or call 647-776-6740.