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Who has custody of pets after a divorce?

Are pets considered living things? Who has custody of pets after a divorce? All these and other questions will be resolved in this article.

After a divorce all the common property of the marriage must be divided and in the case of having common children the custody and responsibilities for each of the parents must also be regulated. Given these circumstances, the question arises as to who cares for pets in the event of divorce or breakup. The Courts are beginning to rule on this matter of fact.

Is it advisable to regulate the custody of pets through a mutually agreed procedure?

Lawyers specialized in family law and the Courts coincide in pointing out that, just as it happens in the custody of common children, in the event of a divorce or a breakup of a couple, it is best to make a mutual agreement agreement regulating parental-child relations between spouses and also the custody and custody of pets. And it is that within the same regulatory agreement for divorce or breakup of a couple it is extremely important that the lawyer establishes a specific clause on the custody and, where appropriate, the visitation regime for pets. In this way, both spouses and pets will be satisfied with the agreement established in the agreement.

If no agreement is reached, the court will be resorted to through a contentious divorce, and in this way it will be the judge who will establish the guardianship and custody system for pets. Before a contentious divorce, and unlike a mutually agreed divorce, there will be no possibility of having a common lawyer, but they need to defend their interests separately and go to court so that it is the judge who makes the decision on the direction of their future relationships.

Are pets considered living things?

There are judges who consider animals as living beings that may be subject to the custody regime, but other judges consider them to be movable things and, therefore, the referenced regime does not apply to them.

According to art. 333 of the Civil Code animals have no more significance than mere objects or merchandise. And is that all things that are or can be appropriated are considered as movable or immovable property. And it is not surprising that this conception is still in force if the Civil Code dates from 1889 and has not received any changes regarding the regime that should be established for pets and animals.

Therefore, the treatment offered by the Civil Code to pets is the same as that offered to personal property and, therefore, their property may be the subject of a claim by the spouses, such as the car, motorcycle, home, etc. That means that if the pet was owned by only one party before the divorce, the other will have no claim whatsoever on the pet or its claim.

In the same way it will act in the event that it has been bought or adopted within the marriage if there has been a separation of assets. Of course, the owner must prove by means of a document the belonging of the animal, and the other party will not have the right to claim rights to it, or any financial compensation.

It should be noted that this regulation is pending modification, and that is that one of the modifications that it wanted to carry out, now suspended, is the modification of the Civil Code, the Mortgage Law and the Civil Procedure Law on the legal regime of animals to allow to be considered to be "things" to pass to be considered "beings endowed with sensitivity".

What if the divorcing couple does not have children or they have already become independent?

In this case, the custody of the pet will rest entirely on the judge's decision, which will take into account who walks the pet, the domicile that lives, who takes it to the vet, in short, who is in charge of the daily care of the pets.

Who has custody of pets after a divorce?

After a divorce or sentimental separation, and following the guidelines of the Civil Code, custody will fall to the owner of the pet, or person in whose ownership the care of the pet resides.

However, as explained by family lawyers, this is not always the case, and must be reviewed on a case-by-case basis. In a recent Judgment of the Court of First Instance number 9 of Valladolid dated May 27, 2019 on the custody of the dog, it has been the first judicial ruling in Spain that has estimated the shared custody of animals in a case of couple separation.

The Judgment establishes that animals cannot be treated as mere movable property, but rather that they are "beings endowed with sensitivity" and therefore "the welfare of the animal" must be addressed when legal issues that affect their property are addressed, such as the right of property or the right of use and enjoyment.

In this way, the judge decides that the dog must be in joint ownership between the two members of the couple. This decision is made, not taking into account the civil co-ownership norms as it used to be up to now, but taking into account the “interest and well-being of the animal”, as well as that of the family and those involved.

The Judgment even contemplates the possibility that the owners can visit their pet when it is in the other's home at least one weekend a month.


We remind you that at Forcam Abogados, family law attorneys will be able to clarify any doubts that may arise in your specific case.

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