A short time ago we announced an important and long-awaited reform of the Civil Code whereby animals are now considered sentient beings instead of mere chattels.
It is a reform that recognizes an already common practice among judges: to take into account the sensitive nature of animals in proceedings of all kinds, such as divorces and separations. Now we know the first order on animals as sentient beings issued after the reform of the Civil Code and in application of such reform.
An order that does not rule on a family matter, but on a claim action, whose effects help us to understand the broad spectrum of cases in which the reform is applied and the new protection granted to animals in our country.
Reform of the Civil Code on animals
Before going into the matter and analyzing this order, it is worth recalling some of the main lines of the reform of the Civil Code by which animals are now considered as beings endowed with sentience.
The basic premise is that the recognition of animals as sentient beings permeates everything throughout the legal text: the reform touches many articles of the Civil Code precisely to regulate all those situations in which they should be protected and treated as sentient beings, and not as things.
Thus, the new article 333 bis of the Civil Code establishes that animals are living beings endowed with sentience, and that the legal regime of goods and things will only be applicable to them insofar as it is compatible with their nature or with the provisions intended for their protection.
On the other hand, animals are and will remain, in general, objects of appropriation and trade.
However, it is specified that the relationship between the person and the animal must be modulated by the quality of sentient being, so that the rights and powers over animals must be exercised taking into account the welfare and protection of the animal, avoiding mistreatment, abandonment and the causing of a cruel or unnecessary death.
The point that most interests us from the point of view of Family Law has to do with the regime of cohabitation and care of pets in case of breakup: in this sense, the covenant on domestic animals is contemplated and the criteria on which the courts must make the decision of to whom to hand over the care of the animal, taking into account its welfare, are established.
Criteria are also contemplated in matters of inheritance, as well as measures in case of mistreatment of animals or violence of any kind in a family context, among many other things.
Keys to the first order on animals as sentient beings after the reform of the Civil Code
As for the content of the order we are commenting on, issued by the Court of First Instance No. 11 of Oviedo, it uses the new article 333 bis of the Civil Code, which came into force last January 5, to decide on the future of a pet. Specifically, a dog is prevented from being separated from the one who was its main caregiver during the last years while the main conflict, which is about who of the two should keep it in the future, is being resolved.
We are not dealing with a family law case: we are not talking about a couple, but about a man who had to move abroad and for this reason asked a friend to take care of his pet for several years. When he returned to Spain and asked his friend to return the pet, she refused, thus initiating this legal proceeding.
The order, whose content has been explained by Legal Today, adopts as a provisional measure to prevent a dog from being separated from the person who was its caregiver for the last three years: “Until the final decision on the ownership of the animal by means of a final judgment is made, the welfare of the animal advises not to establish changes in its current situation; changes that may not be definitive and that could generate unnecessary suffering to the animal that would be separated abruptly from the person who has been its caregiver, at least, for the last three years”, states this legal text.
The order also comments “the eventual damage that may be caused to the animal by the change of environment in the event that a judgment is rendered overturning the first instance judgment”.a damage that “cannot be amended or compensated for.”since “we are not dealing with the delivery of a thing but of an animal which, in the words of Article 333 bis of the Civil Code currently in force since January 5, 2022, is a living being, endowed with sensitivity, so that all decisions affecting an animal must ensure its welfare in accordance with the characteristics of each species”. In addition, the court decision comments that, “as the judgment that serves as title to the execution says, since March 2019 the man has had no contact with the animal for almost 3 years.”while the defendant “has cared for him as diligently as possible, feeding him and giving him the care he needed.”.
Al hombre se le imputa también una “falta de responsabilidad hacia las necesidades básicas del animal”. En cuanto a los tecnicismos del proceso, en un primer momento el hombre intentó la vía Penal, a través de una denuncia por apropiación indebida, sin que prosperara esta reclamación. Luego, en la vía Civil, optó por una acción reivindicatoria, que protege el derecho de propiedad y pretende la restitución de la cosa que indebidamente posee un tercero.
La primera sentencia dio la razón al hombre, ante lo cual la mujer recurrió ante la Audiencia Provincial de Oviedo.
Dado que el fallo aún no es firme, el hombre solicitó la aplicación provisional de la sentencia.
El juez le dio la razón en este punto, pero la segunda propietaria se opuso a esta ejecución: sobre ello resuelve el auto que comentamos, esta vez, a favor de la cuidadora de la mascota, y en aplicación de la reforma del Código Civil. Cabe recordar que esta nueva normativa también se aplica a los casos de custodia de mascotas en caso de divorcio o separación.
La lógica es, en estos casos, la misma que en el caso de los niños: debe primar la protección y bienestar de los animales, de forma que toda solución judicial deberá girar en torno a ello. Consulta tu caso a nuestras abogadas de Familia en Barcelona.
