Animals have the right to shared custody, in all types of families?

By Olga Ortiz i Moreno, president of the Animal Law Commission of the Colegio de la Abogacía de Mataró and member of the CICAC Commission for the Protection of Animal Rights.

A few days ago the news was known and published about the sentence handed down by the Audiencia Provincial of Pontevedra, Section 6, Sentence 526/2023 of November 3, 2023, Rec. 451/2023, in which it was stated “… The pet of the couple will be in the care of Mr. Sagrario and the extraordinary and veterinary expenses will be paid in half . Mr. Pablo will contribute to the cost of the animal with the sum of 40 euros per month payable in the first five days of each month and updated annually in accordance with the CPI… “

Since the modification of art. 94 bis of the Civil Code by Law 17/2021 of December 15, which came into force on January 5, 2022, it was known that animals had the quality of living beings endowed with sensitivity and the coexistence relationships that is established with them and the family, but the application of the article cannot be extended by analogy to de facto couples (unless the Autonomous Communities that regulate de facto couples contemplate it in their regulations), although at the state level it is established considers that the application of article 94 bis of the Civil Code is excluded since it is limited only to cases of annulment, separation and divorces. The application of art. 94 regulates that the judge will entrust the pets for their care to one of both spouses.

The approval of the law known as the Animal Welfare Law, Law 7/2023 of March 28, which came into force on September 29, 2023, develops in the administrative field the responsible ownership and coexistence with these animals and the obligation to treat them in accordance with their status as “sentient beings” with administrative sanctions in case of non-compliance

Law 7/2023 makes a list of which species of animals can be pets, and it mentions dogs, ferrets, those belonging to species that are considered domestic animals, and animals belonging to wild species. contained in the positive list of companion animals (mammals, birds, reptiles, amphibians, fish, invertebrates) determined by the competent ministry but which has not yet been done).

This entire list is considered to have the status of companion animals and I understand that this law could be considered as a complement to article 94 bis CC, so that the Judge can interpret which companion animals (or family animals) can establish a regime of cohabitation and care, or which spouse should take care of their expenses, questions arise about what to do with the fish, guinea pigs, turtles, etc. ? Should the Judge rule on these or are we only talking about dogs, cats or ferrets? Should the expenses be set out in the judgment that one or both spouses must assume at the time of separation? In application of the approved administrative rule and its content, I consider that it could be perfectly argued that all animals that have been part of the family would fall within what art 94 bis of the CC refers to.

Legislation at the State level has assessed the following aspects to make decisions regarding who to entrust with the care of the family animals and this is:

• The interest of family members.
• The well-being of the animal.

It should be taken into account that the possession or custody of pets in a divorce will be adopted regardless of the spouse who is the owner and owner of the animal. Courts must entrust the care of pets to one spouse or both. All of this taking into account the interest of the family members and the well-being of the animal, regardless of its proprietary ownership.

Pet ownership in common-law couples is not extended by analogy or at least that the judge understands that he can rule on it. In cases of de facto couples, by default, the companion animal(s) will remain with its owner and owner.

When the stable couple is terminated, if a lawsuit is filed before the courts, it will be the decision of the judicial authority whether it applies by analogy to marriage, the custody and possession of the pet. And this restrictive criterion is interpreted in this way by jurists since the parties are free to marry or not and therefore if they decide to live together as a couple and not get married; In principle, such a decision and the legal characteristics that it entails must be respected, as is the case in other interpretations in relation to the provisions that are applicable to marriages and not to de facto couples. Unless jurisprudence in similar cases dictates and rules otherwise, shared/individual custody de that animalIt's a friendNIa sóIt is legally regulated in marriage.

We must be aware that there are other rules that apply to all those people who have a pet or who have agreed to take care of it since they will be responsible for its health and well-being. The person responsible for his care must provide accommodation, care and attention that take into account his ethological needs, in accordance with his species and breed, Article 4 European Convention on the Protection of Pet Animals

And art 333 bis of the Civil Code establishes that. “The owner, possessor or holder of any other right over an animal must exercise their rights over it and their duties of care, respecting its quality of being sentient, ensuring its well-being in accordance with the characteristics of each species and respecting the limitations established in this and the other regulations in force.”

Therefore, in the case of de facto couples, and considering the amount (value of the pet), an attempt could be made to request in the verbal trial process the request for the pet's care regime, visitation regime and expenses, if It will be proven that both have been responsible for their health and well-being as indicated in art 4 of the European Convention for the Protection of Pet Animals and assessing who is the appropriate person to exercise their rights and duties of care, art 333 bis CC. (It is an interpretation in order to protect pets that live with de facto partners and we know the emotional bond that can be created with them)