Custody of pets in the event of separation or divorce

After several years of attempts, a reform of the Civil Code (CC) was approved and came into force in 2022, whereby pets are no longer considered movable property but are recognised as sentient beings.

From the Family and Succession Department of BELZUZ Abogados, S.L.P. SPAIN, in this article we aim to explain what happens to the pet in the event of a couple’s separation.

What will be the arrangements for cohabitation and care of the pet, what types of proceedings exist, what criteria will the judge take into account when ruling in the event of disagreement between the parties, who will bear the costs of caring for the animal, and what happens in the case of unmarried couples.

Custody and care of pets in the event of a break-up

Pets must also be considered as members of the family. Just as with minor children, a legal framework must be established to regulate the relationship that will apply following the break-up.

The allocation of pet custody will depend on whether or not the parties can reach an agreement. Depending on which situation applies, the process will be handled differently.

Types of procedure for awarding pet custody

1. Procedure by mutual agreement

If the couple agree on how to regulate the arrangements regarding the pet following the break-up, the settlement agreement will set out the living arrangements and custody of the animal. If there are minor children or any other aspect needs to be regulated, this will be included in the same settlement agreement.

Article 90.1.b) bis of the Civil Code provides as follows:

1. The settlement agreement referred to in Articles 81, 82, 83, 86 and 87 must contain, at a minimum and where applicable, the following points: The fate of any pets, taking into account the interests of the family members and the animal’s welfare; the allocation of time spent with and caring for the animal, if necessary, as well as the costs associated with the animal’s care.

2. Litigation

If the couple fails to reach an agreement regarding the custody of the animal, the matter will proceed to litigation.

What criteria will the judge take into account when awarding custody of the pet in the absence of an agreement?

Article 94 bis of the Civil Code provides:

The court shall entrust the care of pets to one or both spouses and shall determine, where appropriate, the manner in which the spouse to whom they have not been entrusted may have them in their company, as well as the division of the costs associated with the animal’s care, all of this taking into account the interests of the family members and the animal’s welfare, regardless of who owns the animal and to whom it has been entrusted for care. This circumstance shall be recorded in the relevant animal identification register.

Article 94 bis of the Civil Code

According to this article, the judge shall consider various factors when deciding on the custody of the animal, taking into account the interests and welfare of the animal, as well as those of the family.

Some of the criteria the judge will take into account are:

• Who is the owner of the animal.
• Who is the actual carer of the pet.
• Who has the most time available to care for it.
• Who can provide the best conditions for the animal (for example, a home suitable for its welfare).
• Or, if there are children, who has been granted custody of them.

This last criterion relating to child custody is one of the most important to bear in mind due to the emotional bond that children form with their pets.

Depriving a child of contact with the pet or limiting it can have negative consequences for the child that must be avoided. This is why, on many occasions, an attempt is made to establish a living arrangement similar to the custody arrangement agreed for the children.

Regulation of pet expenses following a break-up

The parties may reach an agreement, amongst other things, regarding the payment of expenses arising from the care of the animal. However, if no agreement is reached, it will be the judge who determines the parties’ share of the costs of the animal’s upkeep and care.

To give an example, the judge, taking into account the circumstances of each carer, may agree that the costs of healthcare, veterinary care and vaccinations are shared equally between the two, but that those relating to grooming are borne by each party during their period of cohabitation.

All of this will depend on factors such as the financial resources of each carer and the living arrangement that has been agreed.

What about unmarried couples?

If the couple reaches an agreement regarding the custody of the animal, there will be no issue and it can be implemented once the agreement has been ratified in court.

However, if there are disagreements between the parties and it becomes necessary to go to court, the situation will be more complicated. This is because the new regulations established in the reform of the Civil Code only apply to married couples.

The legal situation is more complicated for unmarried couples, as civil law does not recognise this type of relationship. In this case, in the absence of applicable legislation, we will have to wait for court rulings to be handed down and for case law to develop on the matter.

Conclusion:

1. Key principle:

Animals are now considered: “sentient beings”

2. Legal status of animals: they cease to be “things”, they are not legal persons like human beings.

They occupy an intermediate category:

• • They are not traditional material assets
  • They are legally protected
  • Their welfare is prioritised

3. Specific provisions in the event of divorce

Key article: Article 90 of the Civil Code

This article governs the settlement agreement.

Since the reform, it must include:

• • The fate of pets
  • The allocation of time spent with the animal
  • The sharing of costs (expenses)

4. Types of arrangements regarding the animal

The judge or the parties may establish:

1. 1. Joint custody

• • • Alternating time spent with the animal
    • Similar to joint custody

1. 2. Sole custody

• • • The animal remains with one of the spouses

1. 3. Visiting arrangements

• • • The other spouse may spend time with the animal during specific periods

5. Costs and expenses (Art. 90 CC)

The following are regulated:

• • Food
  • Veterinary care
  • Insurance
  • Other care

It may be agreed:

• • Proportional sharing
  • Or that one party assumes the full cost

6. Judicial intervention (Art. 94 bis CC)

If no agreement is reached:

The judge decides:

• • To whom the animal is awarded
  • How time is allocated

Fundamental criterion: The animal’s welfare

7. Criteria assessed by the judge

• • Who has been the primary carer
  • Who has the best conditions
  • Emotional bond
  • Stability of the environment
  • Avoiding stress or sudden changes

8. Important limitations

• • They shall not be treated entirely as children
  • There is no parental authority over animals
  • They do not generate fundamental rights

The current regulation represents a paradigm shift:

• The legal treatment of animals is partially humanised
• The concept of animal welfare in family law is introduced
• It is mandatory to include their situation in the divorce proceedings

From the family and inheritance law department, we are at your disposal to assist you if you are going through a divorce in which there are pets within the family unit.