Pets are well regarded as valuable family members, which is why it comes as no surprise that there is often a fair amount of tension and disagreement when it comes to pet custody after a divorce. If you find yourself in this predicament, we’re here to help. Today, we look at what your rights and entitlements are when it comes to your beloved fur babies, so read on to find out more.

Pets Are Property

It may sound controversial or even upsetting, but in the eyes of the law, pets are property and are not mentioned in the Family Law Act 1975 (Cth) . Because of this, your shared pets are considered a part of your property settlement when separation occurs. This is often a difficult concept for many to grapple with due to the emotional attachment we naturally have with our pets. In the majority of cases, the Courts will make an order and award a pet to either party in the same order that lists other personal property.

Because the Family Law Act has yet to distinguish pets from property, they will make decisions regarding pets in the same way they might consider any other family asset: will consider pets in

• Who purchased the pet?
• Whose name is registered on the pet’s microchip?
• Who cares for the pet?
• Who feeds, cleans and walks it?
• Who pays for the pet’s insurance?
• Whose name is it registered in?

For more on how the Courts decide on property division, be sure to check out our previous blog article.

What Are Some Of My Options?

Some couples choose to pre-determine their financial position at separation, also known as a Binding Financial Agreement. Your BFA will entail a clear outline about exactly what will happen to your assets at the point of separation or thereafter. It is important to note that there is absolutely nothing stopping you from including your pets in these agreements!

If there is a child involved, we encourage you to take your child’s emotional needs into account when making a decision on who gets to keep a pet. In many instances, parents end up deciding to let a pet live wherever a child is living to reduce the chances of separation anxiety or emotional distress.
Mediation Can Be Incredibly Helpful

Generally speaking, the Court’s preference is for couples to work out ownership issues amongst themselves. This is where family lawyer-assisted negotiations or mediation can be an incredibly powerful tool. Ideally, you and your ex should try your best to come up with a mutual agreement as to who will take ownership of a pet after separation or divorce.

Increasingly during mediation, “Pet Parenting Agreements” are made, where parties agree on factors such as who the pet lives with, who does changeover, basic care agreements, what vet the pet goes to and so on. Although pet parenting agreements are informal, they can be incredibly helpful if you choose to share the responsibilities of your pet with your ex-partner.

What If We Can’t Come To An Agreement?

As mentioned above, if you and your ex-partner fail to come to an agreement on who will get your pet, there are a few principles the Courts will apply when making a decision about pet ownership. Do keep in mind that the Courts look solely to factual scenarios rather than emotionally charged ones. For example, one of these scenarios can be as simple as who wants the pet more. Whichever way it goes, it is important to note that there is no such thing as a formal or court-ordered custody arrangement for pets.

If you find yourself in this difficult situation, getting in touch with one of our expert family lawyers can be beneficial.

The Bottom Line

At the end of the day, there are no right or wrong ways of dealing with pet ownership or custody in the event of separation. Every case is unique and poses its own challenges, and outcomes can vary depending on your individual circumstances. If you are struggling to come to an agreement with your ex-partner, mediation is always recommended.

At the end of the day, any decision you make with regard to pet ownership should always prioritise your pet’s best interests in the long run.

If you are going through a separation involving a dispute of pet ownership, the expert team at Oxford Partners is here to assist. Our experienced family lawyers are able to assist you in negotiations to help you avoid the long and expensive process of going to Court.

If you are a step-parent, it is vital that you are aware of where you stand. In today’s article, we aim to demystify the legal rights and responsibilities of step-parents, in order to help couples better navigate family life in a world post-separation or divorce. Read on to find out more. 

Defining “Step-Parent” 

In order to better understand your rights and entitlements, we first need to understand the legal definition of the term “step-parent”. According to Section 4 of the Family Law Act 1975 (Cth) (“the Act”) a stepparent is a person who:

• is not the biological parent of the child;
• is, or has been, married or in a de-facto (same-sex couples included) relationship with a parent of the child; 
• and while in a relationship with a parent of the child, treats the child as a member of the family with that parent. 

Legal Responsibilities Of A Step-Parent

As a step-parent, you have the authority to make decisions concerning and affecting the care, welfare and proper development of a child. However, it is important to note that step-parents do not automatically have legal parental responsibility. 

This means that a step-parent cannot legally authorise medical care, sign school forms, apply for passports and so on. There is an exception for emergency medical situations when you might be asked to give consent to a procedure if neither of your stepchild’s biological parents are available. 

Parenting Orders For Step-Parents

Should you want to gain parental responsibility for a child as a step-parent, you will need a parenting order or consider adoption. It is always advised that you seek legal advice from an experienced family lawyer regarding parental responsibility as a step-parent. 

A parenting order will allow you to: 

• Go to school events that parents are invited to;
• Receive school notices, reports and any other teacher-parent correspondence;
• Acquire information about your stepchild’s health and education;
• Pick a stepchild on behalf of a biological parent;
• Spend time and communicate with a stepchild even if you separate from his or her biological parent.

Note: It is important to note that step-parents are only granted parenting orders in special circumstances – for example when both biological parents aren’t available/fit to the parent or there are concerns for a child’s welfare.

Adopting A Stepchild

Adoption is another path that is available to stepparents. Of course, this will require the consent of both biological parents, unless one of those parents has passed away. If you adopt your stepchild, you become your stepchild’s legal parent. 

Adoption laws vary between states and can be complex. As such, it is imperative that you get in touch with one of our trusted family lawyers if you are planning to adopt your stepchild. 

What Are My Custody Rights As a Step-Parent? 

Under Australian law, if a step-parent and a child’s biological parent are separated or divorced, a step-parent does not automatically have the entitlement to spend time with their stepchild or to commence court proceedings. However, a parent and stepparent can reach an informal agreement or enter into a Parenting Plan. 

If you are a step-parent seeking a court order for time with a stepchild, you must first obtain leave of the Court to start proceedings, or to join existing proceedings.

Section 65C of the Act provides means for any person or step-parent concerned with the care, welfare or development of a child to be able to commence or join proceedings concerning the child they have a concern about. Some of the factors that may be taken into consideration include the form of Orders being sought by you, the stepparent, and the history of your relationship with the child.

Will My Stepchild Inherit My Assets? 

If you want to provide for your stepchild after your passing, you must name them in your will. If you have not adopted your stepchild and you die without a will, your stepchild will not be entitled to any of your assets. 

However, if you adopt your stepchild and die without a will, your stepchild has the same entitlements to your property as any of your biological children.

_____________

Truth be told, this article only covers a mere fraction of everything a step-parent needs to know about their legal rights and responsibilities. As you can see, this is a topic that is incredibly complex and made up of a vast number of different layers based on individual circumstances. 

If you have any questions or concerns as a step-parent, it is vital that you get in touch with one of our expert family lawyers who will be able to provide you with legal advice that is specifically tailored to your situation. 

Marriage VS De Facto

One of the common questions we receive when it comes to separation entitlements is whether there is a difference in rights/entitlements for married vs de facto couples. Under the Family Law Act (applicable in all states and territories except Western Australia), de facto couples have the same rights as married couples in relation to the distribution of property. The main difference when it comes to married vs de facto couples is that married couples are not required to be divorced to get a property settlement worked out. 

On the other hand, de facto couples have two years from the date of separation to work out their property settlement, in accordance with section 44 of the Family Law Act. Failure to lodge an application within this timeframe may result in parties being barred from seeking orders about property division unless the Court grants permission to file an application outside of time.

Determining “Property Of The Relationship” 

When it comes to figuring out your rights and entitlements during separation, we first need to identify or determine what constitutes “property of the relationship”. This may include:

• The family home.
• Cars, boats and other vehicles;
• Household and personal items, such as furniture, white goods and jewellery;
• Superannuation;
• Business and property investments;
• Home loan debt; and
• Money owing on credit cards or personal loans.

Mediation Is The First Step 

In most family law cases, mediation is always recommended as the first choice of conflict management. Mediation is cheaper, quicker, more accessible and less stressful than a Family Law Court case. With the help of a neutral mediator, parties can undertake a similar process that is taken by the court to work out a fair settlement for both. Agreements made through mediation can be formalised by the Family Court as binding Consent Orders. 

Mediation is a fantastic way to empower both parties involved and favours a collaborative, peaceful and amicable approach to coming up with resolutions that are fair to all parties involved. If you would like to know more about mediation, be sure to get in touch with one of our team members today. 

If both parties are unable to come to an agreement on a fair settlement, the next step is to allow the courts to handle the settlement. 

How Are Entitlements Sorted Out By The Courts?

Many people believe that when it comes to entitlements, most couples will end up with a 50/50 split. However, this notion is highly inaccurate. In reality, there is a four-step process for working out what percentage of the property each of you should get. This process is used by family lawyers and the courts in determining a fair settlement.

• Step 1: Working out the matrimonial asset pool. The Court must identify and value the parties’ property, liabilities and financial resources. Some of these, as mentioned above, include the family home, motor vehicles, shares, mortgages, personal loans, superannuation, inheritances and gifts. 
• Step 2: Assessing and allowing for contributions to the asset pool. The Court must examine the contributions made by either party, both financial and non-financial, direct and indirect. Both past contributions and contributions made after separation are considered.
• Step 3: Analysing and allowing for the future financial needs of each partner. The Court must consider the future needs of the parties to determine whether adjustments should be made to the percentage of the asset pool that parties are entitled to. Some of the deciding factors may include:
  • Age and health of the parties;
  • Income, property and financial resources of the parties;
  • Care and control of any children involved;
  • Capacity for future employment; 
  • Eligibility for pensions, allowances or benefits;
  • Duration of the relationship;
  • The provision of child support made by the parties; and
  • The terms of any financial agreements binding upon the parties.
• Step 4: Lastly, the Court must evaluate whether the proposed order for property settlement is fair and equitable under all circumstances. The Court must be satisfied with the proposed settlement before it is finalised. 

How Can I Obtain A Settlement? 

The rights and entitlements of separation can be a tricky and time-consuming affair to navigate. We always recommend seeking legal advice as soon as possible, and our team of expert family lawyers are here to assist you through every step of your separation. Call us today at (03) 9670 7577 to find out more.

Also Read the Articles:

• How to Handle Conflicting Needs During Separation Negotiations
• How Therapy Can Support You Through a Separation

Am I In A De-Facto Relationship?

In order to better assess your situation, you will need to ensure that you are in a de facto relationship in the eyes of the law. Under the Family Law Act, a person is in a de facto relationship with another person if:

• Both parties are not legally married to each other; 
• Both parties are not related by family;
• Parties are living together on a genuine domestic basis.

What Does “Genuine Domestic Basis” Mean?

Each de facto relationship and situation is unique and comes with its own set of individual circumstances, but regardless, the Family Court will consider the following factors: 

• The duration of the relationship and whether it is of sexual nature;
• Financial dependence on one another;
• The existence of joint assets;
• Care and support of children;
• The reputation and public aspects of the relationship;
• The extent of mutual commitment to a shared life.

It is also important to note that the Family Law Act recognises that an individual can be in a de-facto relationship even if they are currently married. Similarly, even though it is uncommon, an individual can also be in more than one de-facto relationship. 

Property Division 

If you are in a genuine de-facto relationship that has ended, you are able to apply for property splitting orders if:

• The de-facto relationship has lasted for at least 2 years; or
• You and your partner have children; or
• Your relationship is registered under a prescribed law of your state; or
• During property assessment, it is noted that significant contributions were made by either you or your partner and failure of the court to issue an order would result in serious injustice.

Financial Agreements

Under the Family Law Act, both partners can enter into a Financial Agreement To record your financial arrangement. Your agreement can cover:

• Financial settlement in lieu of a breakup;
• Maintenance in lieu of a breakup;
• Other relevant matters 

Do note that in order for your financial agreements to be legally binding, both parties are required to sign it and get independent legal and financial advice about the agreement prior to signing.

Superannuation

Superannuation that is held by each party can be split either via agreement or court order. The splitting of superannuation is a complex process as each superannuation fund comes with its own set of requirements that need to be fulfilled prior to a split. It is always advised that you get in touch with an experienced family lawyer for assistance with the process. 

Property Settlement

If you are in a genuine de-facto relationship, you may apply for  property splitting orders if:

• The de-facto relationship has lasted for at least 2 years; or
• You and your partner have children; or
• Your relationship is registered under a prescribed law of your state; or
• During property assessment, it is noted that significant contributions were made by either you or your partner and failure of the court to issue an order would result in serious injustice.

Financial Support and Maintenance 

Finally, you are able to apply for ongoing maintenance from your partner if you are unable to support yourself financially. The success of an applicant is heavily reliant on your partner’s ability to pay/provide maintenance and the following factors will be taken into consideration:

• Your age;
• Your ability to work;
• Your financial resources – income, property, dividends and other financial resources;
• A suitable standard of living; and
• If the relationship has in some way impacted or prevented you from earning an income. 

Time Limitations

De-facto parties need to note that whilst there is no time limit on how soon after separation you can apply for property splitting orders, if an application has not been made before the expiration of two years of the date of separation, de facto parties are precluded from bringing an application, without the leave of the Court. 

_________________

If you require assistance or have any questions about your legal rights and entitlements after the breakdown of a de-facto relationship, please contact one of our experienced family lawyers at (03) 9670 7577 or drop us an email at admin@oxfordpartners.com.au to speak to one of our solicitors today.