Multi-species families gain ground: courts prioritize animal welfare

By Olga Ortiz, president of the Animal Welfare Commission of the Mataró Bar Association and member of the Animal Law and Welfare Commission of the Council of Bar Associations of Catalonia.

Since the reform of the Civil Code and its regulation in relation to their status as sentient beings, the terminology is evolving and they are more than just pets (associated with a previous codification terminology). Now they are considered family animals (or called companion animals) and we speak of a MULTI-SPECIES FAMILY.

The modification of article 94 bis, introduced by Law 17/2021, of December 15, has led to a jurisprudential evolution regarding the consideration of these animals as part of the family and therefore their well-being must be assessed and there should not be an immediate application of the custody of family animals that is linked to the custody regime of minors, but rather the judicial decision of with whom the family animal will be, will take into account its well-being and bond with its human of reference and taking into account what is described in Law 7/2023 taking as a reference art. 1.1. Animal rights are understood to mean their right to humane treatment, respect, and protection.ón, inherent and derived from their nature as sentient beings, and with the obligations that the legal systemíThe law imposes on people, particularly hereéthose that maintainin contact or relationship with them. and art. 26 b) Animals that, for reasons incompatible with their quality of life, size or characteristics of their species, cannot live in the family unit, must have suitable accommodation, with dwellings in accordance with their dimensions and that protect them from the weather, in good hygienic and sanitary conditions so as to facilitate an environment in which they can develop the characteristics of their species and breed; in the case of gregarious animals, they will be provided with the company they need.

It is interesting to study what was stated in some rulings regarding family animals and their treatment as semi-movable property, and that although some Audiencia ProvincialThey did not deny that it was becoming increasingly common to refer to agreements regarding companion animals in regulatory agreements; they stated that the regulation of these animals could not equate the affection towards "these beings" with that which parents maintain towards their children.

See sentence:

AP Málago, Sec. 6.ª, 182/2012, of April 12. Resource 192/2012 Speaker: JOSE JAVIER DIEZ NUÑEZ SP/SENT/691744 EEXTRACTS Pets cannot be equated with children, therefore the rules on custody or guardianship do not apply, and they will be included in the assets of the community property to be liquidated as livestock.

THIRD.- In another matter, with regard to the ownership of the two dogs belonging to the litigating couple, this court considers the decision correct.ójudicial decision of the first instance contained in its reasoningón juríDeca, because it differsíeasily treatáRegarding animals, livestock, that a definitive measure can be carried out in the issuance of the judgment of the main procedure and, máSpecifically, how is it intended that the ll be attributedámonth of custody, guardianship or possession of animals in favor of one or the other cónyuge or the separationón of both, one in favor of the husband and the other of the wife, with réThey complain of temporary visits, as if a decision were being made.ón about persons to whom expressly, as they could notíto be otherwise, the articles referíassholes 92 and 94 of the CóI say Civil, but in any case, given the nature of the goods, livestock, as has been said, the correct thing to beá its integrationón in the assets of the community property to be liquidated, without prejudice to the adoption of a suitable alternative in this regard.ón of provisional measure, as set out in artíArticle 809.1, fourth paragraph, of the Civil Procedure Law, it seeming appropriate to bring upóin the considerations that sThey are contained in the order of April 5, 2006 of the Audiencia Provincial from Barcelona (Sectionón 12 ª), which this sentencing court adopts when it states that "each time (it is) máfrequent insertionón in the regulatory agreements of agreements of this nature, referring to companion animalsNIof all kinds," to whichñsince "nothing"úa pronouncement of the lower court jurisprudence of those collected in the bibliographic collectionsáspecialized Spanishñwaves, refers to cases of actual litigation in the executionó"n of such agreements" and that "the conflict arises, in any case, in the speculative field, and the precedents in comparative law belong to más to the world of period literatureística, or the eccentricities attributed to certain characters, which are much more than reality itself.áIt is painful to experience serious personal or economic conflictsómonkeys that family crises» , nor, being acceptable, to seek immediate equivalenceóOne of the affections towards these beings that fathers and mothers maintain towards their children, without it being feasible to impose a similarity of some of these pacts with those that regulate the exercise of parental responsibilities with respect to minor children, which entails, as the resolution tells usóIn judicial matters, among others, whether disputes relating to animals in the manner discussed in this proceeding are susceptible to being adjudicated in family proceedings and in the áthe scope of obligations of the measures providing relief from the family crisis, establishing in this regard that "legislative references to livestock are abundant in our traditionón jurídica, and their affective or economic appreciationóThe monkey has deserved to be the subject of meticulous legislationón, even in the CóI say Civil, which deals with them, among other institutions, by regulating certain rights, such as possessionón, in artíass 465, with the distinctionóAmong the animals that know how to return to the owner's house, whether wild, domesticated or tamed, or when regulating the usufruct of animals in the special contracts on livestockíto, or the appearía of cattle, así like the réThe civil liability regime towards third parties of the possessor of an animal, in article 1905 «, highlighting the importance of awarenessón of the people, norñChildren and adults, towards the care and love for animals, which, ultimately, is an unequal showíIt speaks of appreciation for nature, which is why it is said that "it is not insólit that in some litigation relating to the liquidationóin the case of joint estates, due to inheritance or marital breakdown, decisions must be made regarding rights of ownership, enjoyment or usufruct over livestock, or in wills, agreements regulating separationóIn divorce and its effects, provisions shall be established in favor of dogs, cats or other livestock worthy of special affection by those who have cared for them and enjoyed their companionship.NI"a", highlighting how the veterinary industry, in the urban aspect, has domestic pets as patientsésticas, está booming, (máOver 200.000 families in the city of Barcelona keep companion animalsNI(at their homes), cas wellén lo estáin other businesses that some of them doñThey would have caused you astonishment, like hotels for dogs and cats, gourmet food sections in supermarkets for this clientele, or cemeteries for illustrious deceased of this géanimal nero, so in the práForensic practice, he says, "in family courts and tribunals... has ceased to be anecdotal."óIt is recommended that detailed agreements regarding companion animals be established in regulatory agreements.NIAh, especially when they belong to the children, they should remain in joint ownership.óin the ownership thereof, with specificationónumber of periods of tenure of one and the other dueñor that any potential usage rights be establishedón alternative with respect to dogs, cats and even turtles or lizards, taking into considerationón which are essentially indivisible goods to which it appliesóin the first p ruleáparagraph of articleíass 401 of the CóI say Civil », concluding that "notwithstanding the foregoing, the stateíJudicial practice regarding this type of execution highlights that litigation is not usually frequent, since the common senseún, and the measure of what is reasonable, advise people that they should not establish litigation regarding such hypothesesérights that, even though contractually enshrined, transcend the legalídisc or, with más precisionón, of the jurí"necessarily required," considerations which, when extrapolated to the case in questionón lead to the failure of the motive and, therefore, to the confirmationóThe appealed judgment is flawed in this respect, since, without a doubt, it does not seem appropriate that this matter can be included among the substantial personal and economic measures.ómicas referred to in artíass 91 of the CóI say Civil, but deferred, in any case, to ástrict scope of the liquidationón of the already dissolved community property regime.

These rulings have evolved with the reform of Article 94 of the Civil Code, in which family animals are no longer considered livestock but are part of the custody, and have evolved taking into account their well-being and currently applying in relation to their well-being what is described by Law 7/2023:

Some court rulings prioritize the well-being and conditions of the animal over the interests of its primary caregivers, prohibiting the transfer of the family pet to another residence or granting its care to a caregiver who has not been present with or cared for it. In other words, the physical and mental well-being of the family pet is taken into account, above the practice of family pets coming and going with children. Among others, the following are cited:

AP Madrid, Sec. 22.ª, 589/2024, of November 15. Appeal 83/2024 Rapporteur: ANGEL LUIS CAMPO IZQUIERDO SP/SENT/1245093

 4.- It is not appropriate to judicially order the transfer to Madrid of the pet ADDRESS003, without prejudice to the agreements reached by the parents in this regard.

SIXTH.-If this court shares the decisionóThe decision reached by the trial judge regarding the family pet was not proven, as it was not established which family member was actually the one who regularly and daily cared for the animal, that is, the human reference point for it;éOne of the drawbacks of this move to Spainñas stated in the appealed judgment. Therefore, given the scant evidence presented in these proceedings, and in For the sake of animal welfare, we believe it is best for the pet to remain in its usual residence, where it has lived for a long time.ñthe.

Other rulings state that the well-being and best interests of family animals lie in them remaining together (regardless of legal ownership), and once their interests have been considered, they are aligned with the interests of the child. The courts then determine whether the children should travel with the family animals. The following is cited:

AP Madrid, Sec. 22.ª, 428/2024, of July 12. Appeal 234/2024 Speaker: CARMEN NEIRA VAZQUEZ SP/SENT/1235556

FIFTH.-And it is requested in the appealón measures in relationóna the family animals, remembering that Article establishesíass 94 bis of the CC The judicial authority trustsá for the care of companion animalsNIone or both cónyuges, and determineá, where applicable, the way in which the cóa nyuge who has not been entrusted with powerá to have them in your companyNIa, aceí such as the distribution of the burdens associated with the care of the animal, all taking into account the interéof the family members and the well-being of the animal, regardless of the ownership of the animal and of the animal.én has been entrusted to his care. This circumstance will beá be recorded in the corresponding identification registerónumber of animals. It should be noted that, for these purposes, the ownership of each of the dogs is irrelevant (the Yorkshire Terrier Amatista is owned by the actor), it being essential that both animals remain together and in companionshipNIto the minor, attending to the interés of the niñFor the well-being of Amatista and Prima (Boxer), it is appropriate to agree that on weekends when the minor attends the father-daughter visits, both pets will be moved to the father's home, occupyingáEach parent will be responsible for the expenses incurred by the animals during the indicated visits and stays. For maintenance, feedingóMr. Stefano will pay for all expenses of any kind caused by the animals.áMrs. Amalia will be paid 50 euros per montháany updateán in the manner provided for in the appealed judgment for alimony payments.

Other rulings analyze the USE of the dwelling in consideration of the condition of the family animals, and it is interesting to study the ruling cited in that it assesses the physical and mental conditions of the family animals and, considering their well-being, decides to assign their possession to the person granted the use of the dwelling because that person meets the conditions for the family animals and the decision is based on art. 26b) of Law 7/2023 in respect to their quality of life, size or characteristics of their species, which must have adequate accommodation.

AP Pontevedra, Sec. 1.ª, 295/2024, of June 18. Appeal 44/2024 Speaker: MARIA ANGELES GONZALEZ DE LOS SANTOS SP/SENT/1232909.- EXCERPTS Given the mother's low income, the alimony payment must be maintained. Although the allocation of the use of the family home does not automatically entail the allocation of custody of the family animals, they must remain in the home as it is the most suitable environment for their well-being.

FIFTH.- The care of domestic animalséstics. 28.- The appellant requests that he be assigned "the exclusive custody" of the domestic animalsétics (a Saint Bernard, a German Shepherdán, a small dogñI am a cat) and that a r is fixedéVisiting hours are Tuesdays and Thursdays from 18:00 PM to 20:00 PM. It is stated that DoñAmara has relinquished her "guardianship and custody," the animals' microchips are registered in Don Yeremi's name, and he covers their expenses. Furthermore, the appellant establishes a clear linkón between the attributionóRegarding the custody of the animals and the use of the family home, given that they are large animalsñor, who have never lived anywhere other than their home and are notáThey are trained to go for walks on a leash. He maintains that, in any case, the réThe visitation schedule established in the Judgment is limited and coincides with the días of extracurricular activities of the minor. – The first thing the Court wants to make clear is that there is no connectionón jurínecessary dilation between the attributionón of the use of the family home and the allocationón of the care of companion animalsNIa. The attributionóThe right of children to use the family home, as jurisprudence has repeatedly stated, is a manifestationón of the beginning of the interéthe minor, who is the one who must be assessed as a priority and authoritativeónomo when it comes to assigning that use. This does not prevent, in some cases, the possibility thatúIn that case, depending onóGiven the concurrent circumstances, the allocationóThe use of the dwelling by one or the other parent may be taken into considerationón, in turn, to perform the evaluative task of the «interé"the well-being of family members and the welfare of the animal," which are the criteria that the articleíass 94 bis prevé to resolve this questionón. .- Lan assignmentóOne of those cares isá now regulated, within the framework of marital crises, by the aforementioned articleíArticle 94 bis, not yet in force when the claim is filed, given that the provision was introduced by Law 17/2021, of December 15, without prejudice to its interpretative value in seeking a solutionóna the questionóThe proposed reform stems from the considerationón of animals as living beings endowed with sensitivity, to whom only will beá applicable the régimen jurídescription of goods and things to the extent that it is compatible with their nature or with the provisions intended for their protectionón (artíass 333), with an express intentionófuture vision manifested in the Exhibition itselfón of Reasons for the Law, which indicates that the desirable thing, de lege ferenda, is that the régimen protector vaya extendiégradually moving to the different áareas in which animals are involved, and thereby restrict the applicationón supplementary of the régimen jurídisc of things.  - PFor its part, art.íArticle 26 of Law 7/2023, of March 28, on protectionóThe principle of animal rights and welfare imposes on owners or people who live with companion animalsNIthe duty to protect them, así such as the obligationóto comply with the provisions of said law and the regulations that develop it. In particular, section b) states that: "Animals which, for reasons incompatible with their quality of life, are not sizedñoo characterícharacteristics of their species, cannot coexist in the núfamily nucleus, dutyáto have adequate accommodation, with habitádiapers that fit their size and protect them from inclement weather, in good hygienic conditionéhealth and safety conditions that facilitate an environment in which they can develop their characteristicsícharacteristics specific to their species and breed; in the case of gregarious animals, they will be providedá the companionNIthat they need"It is clear, therefore, that respect for the sensitivity of animals involves, among other factors, providing them with adequate accommodation, under legally established conditions.

In our case, the appellant himself acknowledges that these animals have never lived in any space other than the family home, the use of which has been assigned to his wife. During his testimony at the hearing, Mr. Yeremi stated that the dogs wereáThey are used to living in that house, and they don't take each other for walks "because thereí They are almost 1000 meters long and have always been loose"; that "allí They've always been fine and they have a place." He also acknowledgesáI know that if I were to grant him "custody" of the animals, he would not be able toíand live in their flat - a two-bedroom apartment, según tooén explicó– and that the úlast time I hadía heavy Saint Bernard, hacíto three toños, he weighed 74 kilos. – Under these conditions, it seems clear to us that the decision must be upheld.ón of the Judge of First Instance, because the family home is the úthe only suitable place for the animals to reside, given the impossibility of them living in an apartment with the characteristicsístics of the one used by the defendant. In fact, in the groundsón juríThe ruling already indicates that the animals will remainán under their "custody" while using the family home. On the other hand, it is not accurate that DoñAmara has "given up" caring for animals: what she manifestedó It was that I didn't haveía «noúa problem" with Don Yeremi taking them for a walk, or that he couldíto ask for help from an animal shelter for food, since they will not be able toíto take chargeómicmente of them, or even that habíThey have agreed that Don Yeremi will doíin charge of the dogs' care because economicalóShe couldn'tía. But, in this respect, the Judgment of First Instance already establishes cóI will notáto cover the expenses that arise, putting Do in chargeñAmara will only receive 25% of the total, as long as she does not find a job.

The evolution of jurisprudence leads us to value the interest and well-being of the family animal within its family, hence the terminology of multi-species family.

And therefore there are increasingly more rulings that, in application of Law 7/2023, consider the parameters to assess who should be granted the care of the family animal, taking into account its well-being.

Audiencia Provincial from Pontevedra, Sectionón 1ª, Judgment 295/2024 of June 18, 2024, Rec. 44/2024 Speaker: González de los Santos, María Ángeles

- The allocationóOne of those cares isá now regulated, within the framework of marital crises, by the aforementioned articleíArticle 94 bis, not yet in force when the lawsuit is filed, given that the provision was introduced by Law 17/2021, of December 15without prejudice to its interpretative value in seeking a solutionóna the questionóThe proposed reform stems from the considerationón of animals as living beings endowed with sensitivity, to whom only will beá applicable the régimen jurídescription of goods and things to the extent that it is compatible with their nature or with the provisions intended for their protectionón (artíass 333), with an express intentionófuture vision manifested in the Exhibition itselfón of Reasons for the Law, which indicates that the desirable thing, de lege ferenda, is that the régimen protector vaya extendiégradually moving to the different áareas in which animals are involved, and thereby restrict the applicationón supplementary of the régimen juríI say things. - For his part, the Article 26 of Law 7/2023, of March 28, on the protection of the rights and welfare of animals, imposes on owners or people who live with companion animalsNIthe duty to protect them, así such as the obligationóin order to comply with the provisions of said law and the regulations that develop it. In particular, in its section b), it is provided that: "Animals that, for reasons incompatible with their quality of life, are too smallñoo characterícharacteristics of their species, cannot coexist in the núfamily nucleus, dutyáto have adequate accommodation, with habitádiapers that fit their size and protect them from inclement weather, in good hygienic conditionéhealth and safety conditions that facilitate an environment in which they can develop their characteristicsícharacteristics specific to their species and breed; in the case of gregarious animals, they will be providedá the companionNIthat they need"It is clear, therefore, that respect for the sentience of animals depends, among other factors, on providing them with adequate housing, under the legally established conditions. In our case, the appellant himself acknowledges that these animals have never lived in any space other than the family home, the use of which has been assigned to his wife. During his testimony at the hearing, Mr. Yeremi stated that the dogs wereáThey are used to living in that house, and they don't take each other for walks "because thereí They are almost 1000 meters long and have always been loose"; that "allí They've always been fine and they have a place." He also acknowledgesáI know that if I were to grant him "custody" of the animals, he would not be able toíand live in their flat - a two-bedroom apartment, según tooén explicó– and that the úlast time I hadía heavy Saint Bernard, hacíto three toñHe weighed 74 kilos. - Under these conditions, it seems clear to us that the decision must be upheld.ón of the Judge of First Instance, because the family home is the úthe only suitable place for the animals to reside, given the impossibility of them living in an apartment with the characteristicsístics of the one used by the defendant. In fact, in the groundsón juríThe ruling already indicates that the animals will remainán under their "custody" while using the family home. On the other hand, it is not accurate that DoñAmara has "given up" caring for animals: what she manifestedó It was that I didn't haveía «noúa problem" with Don Yeremi taking them for a walk, or that he couldíto ask for help from an animal shelter for food, since they will not be able toíto take chargeómicmente of them, or even that habíThey have agreed that Don Yeremi will doíin charge of the dogs' care because economicalóShe couldn'tía.