Today we comment on a sentence that is good news for couples who share a pet: a sentence issued by the Court of First Instance of Valladolid has declared the co-ownership of a dog for which a couple had a lawsuit after their separation and has recognized each of them the right to enjoy the animal in alternative periods of six months each year.
A regime of shared custody for pets is thus established, establishing that both the man and the woman are owners of the dog, even though it was registered only in the name of the owner in the administrative registry. In the absence of a specific regulation, the judge establishes that, in this case, the criteria for resolving the conflict must be applied as those foreseen for matrimonial crises, a circumstance which is present in this case, according to the information provided by the High Court of Justice of Castilla y León. Thus, anticipating the reform of the Civil Code that could be on its way, the judge assures that “animals are not things, but beings endowed with sensitivity, which implies that in certain aspects the legal regime of things should not be applied in a supplementary manner, but that their quality of being sensitive must be respected”, argues the sentence. On this basis, and given that the judge considers the co-ownership of the animal, the two owners are granted a right of shared possession and enjoyment of the animal which, in this case, taking into account that one of the litigants will go to live in Alicante, will be developed exclusively for alternative periods of six months each year.
In his resolution, the magistrate specifies that six-month periods are fixed according to the welfare of the animal and takes into account, however, the possibility that, if the owners so wish, during the time they are not with the animal, they can move at least one weekend a month to Alicante or Valladolid to enjoy their dog.
This right of communication must be notified to the other co-owner, in a reliable way, at least one week in advance.
The sentence also orders that the costs of health care, veterinary, vaccinations and other extraordinary expenses be borne 50% between the two owners, subject to documentary justification.
As for the expenses related to food and grooming, each party will assume them during their period of possession.
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 movable property. This has been recognized for years.
Therefore, pets can be claimed in property by either of the two partners or be shared by both of them, 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 whatsoever over it if we stick to the law.
This reality is about to change.
There is a Proposition of Law, currently in the Congress, which intends to modify this nature in order to “establish the important principle that the nature of animals is different from the nature of things or goods, a principle that must preside over the interpretation of the whole legal system”, as stated in the text of the reform.
Thus, 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, which does not imply that in certain aspects the legal regime of things does not apply in a supplementary manner.
Animals will thus become subject only partially 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 intended for their protection.
It is desirable, the text assures, that this protective regime be progressively extended to the various fields 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 will entrust the care of the pets to one or both spouses, taking into account the interest of the members of the family and the welfare of the animal, regardless of the ownership of the animal”.
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, whether 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/her 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 falls to 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 to agree on the conditions under which the care of the animal will be regulated.
The aim is to avoid that the attribution of the custody of the pets is determined taking into account who appears 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 come to an end. If you need help in any matter related to custody and guardianship, please contact us without obligation.
