First pension of a parent for an animal without having custody or visits assigned

By Mª. Luisa Sierra and Amparo Requena, president and vice president of the Animal Law section of the Valencia Bar Association. 

On November 3, 2023, the ruling of the Audiencia Provincial section no. couple, establishes a “alimony” for the family dog.

After the inclusion of article 94,bis of CC with the reform of Law 17/2021 where it is established that, “in the absence of agreement between the spouses, the judicial authority will determine the way in which the spouse who has not been entrusted with the family animal, you will be able to have it in your company, as well as the distribution of the burdens associated with its care, and all of this taking into account the interest of the family and the well-being of the animal, regardless of the proprietary ownership and to whom it is has entrusted its care”, both the first instance judge and the AP have agreed on establishing a pension for the animal despite the fact that permanent custody has been entrusted to only one of the parties.

As a general rule, after Law 17/2021, and despite the fact that the wording of the article in question establishes indeterminate concepts such as “family interest” or “animal welfare” that can give rise to disparate assessments depending on the sensitivity of the judge, the usual thing up to now is that, taking into account the two established criteria, the courts determine that the animals accompany the children in shared custody, and in the event that there is not one, they establish a visitation regime or shared custody of the animals themselves.

The relevance of this ruling in comparison with the existing jurisprudence up to this point is that it is the courts that set the monthly amount that one of the parties will contribute, considering that they have greater purchasing power, despite the fact that they will not have access or relationship with the animal; They establish it at an average amount between the claims of the two parties:

“There is an agreement that the pet that was a family member will remain living with xxx and its extraordinary veterinary expenses will be paid in half without establishing a relationship system with xxx. The only discrepancy focuses on the actor's contribution to the cost of the animal and that it is set by this provider at half between what is requested (50 euros) and what is offered (30 euros), that is, 40 euros per month; without, on the other hand, further proof being carried out on the matter and the very unusual claim in relation to the provisions of article 94 BIS CC.” 

The ruling establishes the shared custody regime with respect to minor children and the custody of the animal, which is in charge of one of the parties and it is especially relevant that attention is being paid to guaranteeing the protection and responsibility of both parties with respect to it, without resorting to proprietary ownership or cohabitation.

Since the first rulings that were pronounced on animals in matters of couple or marital break-ups such as, among others, the SAP of Barcelona in 2006 (dog visitation regime), the SAP of Badajoz in 2010 (shared custody of the dog), SAP of Navarra of 2013 (shared expenses of the dogs and custody together with the children), Stc of 1st Instance of Valladolid of 2019 (shared custody and visitation of the dog), Stc of 1st Instance of Madrid of 2020 (co-ownership of the dog by emotional ties) ... until this ruling that concerns us, there is a very successful and necessary evolution of the criteria of the courts towards the consideration of companion animals as part of the family unit due to the strong emotional ties that are created with them and the need to guarantee their care and protection. Furthermore, this consideration also protects the rest of the family, who will be guaranteed the continuity of coexistence with the animal from which they do not want to be separated.

This evolution towards the consideration of pets as part of the family, which was assumed by the courts on a daily basis and which finally included art 94, bis in couple breakup procedures, is very far from being assumed in other areas. everyday legal issues that require urgent legislative changes.

Regarding this need to accept animals as part of the family unit, we want to focus on situations where this consideration is very far away.

On the one hand, it happens on numerous occasions that, after the breakup, one of the members of the couple has to move to a rental home and is faced with the situation that it is practically impossible to find homes where animals are allowed, so , in cases of shared custody of the animal, they have to renounce it, due to the impossibility of coexistence.

This should give rise to possible regulatory changes and provide solutions with the obligation to stipulate additional insurance or any other measure that would allow family animals to not be an impediment when establishing housing.

Even more serious is the situation in cases of victims of gender violence at extreme risk, who have to leave home because their lives are at risk, and who find themselves in shelters or residences authorized by the administration for these situations. so serious, incomprehensibly they do not allow animals. This causes a re-victimization of the woman, who in many cases delays or abandons the transfer because she does not leave the animal in the hands of the abuser (with the risk that this entails for both of them), forcing her to stay on the street because she cannot be separated from the animal. , or the force to have to hand it over to municipal services with the pain that occurs in these already tremendously painful situations.

Similar situations occur with vulnerable people who live on the streets and do not go to shelters because they are not allowed access with their only animal family, or elderly people without family to support them, who avoid moving to residences because they do not leave the animal they are carrying. years sharing his life.

Very different from what happened recently in the dramatic fire that destroyed two buildings in the city of Valencia and in which all the hotels that offered to welcome the families did not put any impediment to accommodation with their animals.

For all this, we do not stop celebrating the advances that are being produced in relation to the treatment of animals in society and in the courts, but at the same time, these examples serve to show that, despite the changes introduced by Law 17 /2021, there is still a lot of progress to be made in the adoption of measures that consolidate animals as part of the family unit, with all the consequences.