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Pet Custody: Who keeps the pets in cases of separation or divorce?

Although from the perspective of Criminal Law, for many years now, there has been greater sensitivity and protection towards the treatment of companion animals, differentiating it from other goods, the reality is that, from a Civil perspective, and until January 2022, this was not the case, so dogs, cats or any other pet animal had, in legal effects, the consideration of "movable asset" or "thing".

This implied that legally a dog could be assimilated to a dishwasher. In fact, and although it may seem surreal, an animal such as a dog could serve as an instrument to guarantee an obligation contracted with someone, as happens in bank mortgage loans, in which homes guarantee the repayment of the loaned capital.

Although until before 2022, there had been some isolated and pioneering sentences that had already addressed the need to treat domestic animals other than that of mere "things" (specifically, the one issued by the Court of First Instance 9 of Valladolid on May 27, 2019), it is not until January 5, 2022 when, finally, a paradigm shift arises and through a profound legal modification, it is possible to change such an archaic concept by shielding pets with an adequate protection and that, in the separation or divorce procedures, the pet is no longer part of an inventory to be distributed as if they were a shoebox.

By virtue of these legal changes, to what we already mentioned in our 2017 post on "Measures to Regulate in a divorce proceeding" we must now add a new aspect to regulate in any separation or divorce: the rights and obligations of the members of the couple that is going to separate in relation to their pet.

With this intention, Law 17/2021, of December 15, amending the Civil Code, the Mortgage Law and the Civil Procedure Law, on the legal regime of animals was approved.

Aspects to take into account of Law 17/2021

  1. The first change that this Law introduces is in a conceptual level: The animals cease to have the legal nature of things or goods, becoming to be considered as beings endowed with sensitivity.

    In this respect, a new article surges in the Spanish Civil Law Code, article 333bis, with said declaration of intentions: “1. The animals are living beings endowed with sensitivity. The legal regime of goods and things will only be applicable to them to the extent that it is compatible with their nature or with the provisions for their protection.” (translated from the original Spanish legal text)

  2. As a consequence of this conceptual change as how the animals ought to be considered, several modifications were done in the sections of the Spanish Civil Code that regulate the consequences of marital crisis. Specifically, articles 91, 90.3, which were modified in this sense and article 94bis that was added.

    With the modification of said civil precepts, the perspective of domestic animals is changed, since dogs and cats are no longer treated as mere furniture or properties that can be divided, but rather the Judge is obliged to establish to whom the responsibility is attributed; which means, who keeps custody of the animal, who is entrusted with the care of the animal (or both), to establish a visitation regime, how the obligations will be divided between the spouses in terms of their maintenance and care (food , vet, vaccines...), etc.

    To do so, the parties while subscribing the agreement that regulates the separation or divorce (in mutual agreement procedures) or the Judge (in contentious procedures) has to take into account which member of the couple has had more contact with the pet or with which has had a more affective relationship and regulate this relationships with the other party in the terms indicated above.

    Also, if the circumstances that led to take decisions in that respect (for instance, there is proof that the other party did not take care of the animal), a change of the measures established in the resolution can be requested and also when the animal circumstances have been seriously altered.

  3. Likewise, the Mortgage Law was modified, clearly establishing that "there is no room for extension of the mortgage agreement to pets”. Therefore, it is no longer possible to “mortgage” dogs or cats.

Legal voids

Although this conceptual change has meant a significant advance in the matter, the reality is that a greater specification would have been advisable in order to be able to provide the Courts with guidelines and criteria on how to apply the Law and to be able to offer greater legal certainty. How can we know which member of the couple in the separation or divorce has a greater relationship with the animal? Which of the two ensures the best well-being of the dog or cat?

Undoubtedly, the interpretation that the Judges and Courts make in the next judicial rulings that they make regarding this 2022 Law is what will allow us to consolidate a guide on how to properly interpret the norm.

Do you have more questions? Do you want us to advise you on how to regulate the custody of your dog or cat in your separation or divorce proceedings? Contact our expertise in Family Law and request a face-to-face visit, or if you prefer, use our advice service by videoconference or by email.


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