In today’s post we comment on a long-awaited reform that we have talked about on several occasions in our blog: the reform of the Civil Code that now considers animals as ‘sentient beings’, as opposed to their previous definition as mere chattels.
Thus, if until now our pets and other animals were valued in our Civil Code in the same category as a car or a table, from now on there will be a clear recognition of their nature.
It must be said that judges have been recognizing this fact for some time, among other things, in their judgments on pet custody.
Now this trend is provided with a clearer legal body in which to develop.
Animals as ‘sentient beings’: a new legal definition
This reform comes from the hand of Law 17/2021, of December 15, amending the Civil Code, the Mortgage Law and the Civil Procedure Law, on the legal regime of animals.
This is a long-awaited text and, in fact, there are many rulings that anticipate this necessary reform on which there is social unanimity.
Judges rely on legal instruments at European level, which are above the Spanish norm and which already recognize the sensitive nature of animals. It could be said that this change comes late, but the truth is that this logic has been applied for some time and with increasing intensity.
If we take a closer look at the key aspects of this reform, we will see that, among other things, this change implies that, in case of division of assets due to separation or divorce, the animals will not be handed over as property to the person who bought them, but their emotional ties and welfare will be taken into account, similar to what happens with the custody of minors.
Thus, shared custody of pets will be common, regardless of who bought the animal, without ownership being relevant in this regard.
For this it has been necessary to modify, in the first place, the nature of animals to differentiate it from the nature of things or goods, a point that we find in Article 333 of the Civil Code.
This article states that all things that are or may be subject to appropriation are considered as movable or immovable property: now, 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 faculties 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.
As a result, the reform goes through and touches many precepts of the Civil Code: the new law adapts, among others, the traditional notions of occupation, natural fruits, finding or liability for damages and hidden defects, applied to animals, protecting them.
As regards the custody of pets, which is perhaps the point we are most interested in examining in the field of Family Law, precepts are introduced to specify the regime of cohabitation and care of pets in the event of the breakdown of cohabitation:
- It contemplates the covenant on domestic animals and establishes the criteria on which the courts must decide to whom to entrust the care of the animal, taking into account the animal’s welfare.
- Inheritance provisions are incorporated regarding the fate of animals in the event of the death of their owner.
- On the other hand, in view of the existing link and the concurrence between animal abuse and domestic and gender violence and child mistreatment and sexual abuse, limitations on custody and guardianship are contemplated in cases of a history of animal abuse exercised as a form of violence or psychological mistreatment against animals.
Finally, the reform prevents the extension of the mortgage to animals placed or destined in an estate dedicated to livestock, industrial or recreational exploitation, and prohibits the extension of the mortgage to pets.
Article 605 of the Civil Procedure Law is also amended to declare pets unattachable. All these regulatory changes will come into force on January 5th.
If you have any questions, please contact our team: we will be happy to help you. .
