In case of divorce or separation, we have to go through the inevitable process of dividing assets, establishing measures for the future to regulate life separately… and deciding how custody will work in case of having children in common.
But can a custody regime also be established for pets?
Does the law allow the law to regulate the time a dog or cat will spend with each party to the relationship, as well as the responsibility of each party with respect to them?
Pets are part of the couple’s life together and, in view of this, our legal system is in the process of being modified to expressly contemplate the possibility of making this type of decision.
The jurisprudence is a step ahead in some cases and there are already sentences that adopt this type of custody agreements, but the majority position is to wait for this reform to be able to establish a custody regime in the case of pets. If you need help in any matter related to custody and guardianship, please contact us without obligation.
The best solution: an amicable agreement on the custody of the pet
In the same way that happens with children, nowadays we can reach an amicable agreement between both parties to avoid going through the courts. It is also possible to agree in the divorce or separation agreement how the custody of the pet will work, avoiding an open conflict before the judge that could complicate things. In case of agreement, both parties can be assisted by the same lawyer and reach a solution that suits the wishes of each party. When this is not possible and we have to opt for a contentious divorce or a contentious separation, each of the members of the couple must defend their position, with the help of a lawyer, and wait for the judicial decision. In these cases it is more complicated to establish a custody regime as such, since there is a division between judges who admit pets as beings susceptible to this regime and those who strictly apply the law and consider them as movable things.
What does the law say about pet custody?
Currently, the wording of the Civil Code – specifically Article 333 – implies that pets have the nature of chattels. This has been recognized for years.
Therefore, pets can be claimed in property by any of the two members of the couple or be shared by both, being the property the only relevant factor, under the same premises as a house or a car. If, for example, the pet was already owned by one of the parties before the divorce or separation, the other party will have no rights over it if we follow the law.
This reality is about to change. There is a Proposed Lawcurrently before Congress, which seeks to modify the nature of the company to “lay down the important principle that the nature of animals is distinct from the nature of things or goods.This is a principle that must preside over the interpretation of the entire legal system”, as stated in the text of the reform. In this way, together with the affirmation of the current article 333, according to which “all things that are or can be the object of appropriation are considered as movable or immovable property”, it is specified that animals are not things, but living beings endowed with sensibility.This does not imply that in certain aspects the legal regime of things does not apply in a supplementary manner.
Animals will thus become only partially subject to the legal regime of goods or things, insofar as there are no rules specifically designed to regulate the legal relationships in which animals may be involved, and provided that the legal regime of goods is compatible with their nature as living beings endowed with sentience and with the set of provisions designed to protect them.
It is desirable, the text assures, that this protective regime be progressively extended to the different areas in which animals are involved, thereby restricting the supplementary application of the legal regime of things. Among other things, precepts are introduced in the rules relating to matrimonial crises aimed at specifying the regime of custody of pets, an issue that has already been the subject of controversy in our courts.
For this purpose, the pact on domestic animals is contemplated and the criteria on which the judge must make the decision of to whom to hand over the care of the animal, taking into account its welfare, are established:
– The destination of the pets, in case they exist, may be part of the regulatory agreement, “taking into account the interest of the members of the family and the welfare of the animal, being able to foresee the distribution of the times of enjoyment if necessary” – In terms of custody, a new article is introduced which states that. “the judicial authority shall entrust companion animals to the care of one or both spouses.The concept of ownership is thus relegated to the background, with the concept of ownership being relegated to the background. The concept of ownership is thus relegated to the background. – In case of separation or contentious divorce, the law will provide that the judge must determine, “taking into account the interest of the members of the family and the welfare of the animal, if the pets are entrusted to one or both spouses, the way in which the spouse to whom they have not been entrusted may keep them in his company, as well as the appropriate precautionary measures to preserve the right of each one”. This also outlines a right of visitation in the event that custody rests with only one of the parties of the couple.
Until this reform arrives, it is important to try by all means to reach an agreement and agree on the conditions under which animal care will be regulated. The aim is to avoid that the attribution of the custody of pets is determined taking into account who is listed as the owner.
In the near future, the refusal that different courts and tribunals have shown so far to declare as effects of the separation, annulment or divorce the attribution of the custody of the pets, understanding that this possibility is not included in our Civil Code, will end. If you need help in any matter related to custody and guardianship, please contact us without obligation.
