On January 5, 2023, a reform of the Civil Code came into force that considers pets as 'sentient beings', taking into account the Animal Welfare Law. This means that pets are no longer considered 'things' and a legal regime for animals is developed: they are not an asset that can be seized, mortgaged, mistreated or removed from one of the owners in the event of divorce and separation.
How is the custody of companion animals regulated from now on? Who gets the pet in case of divorce or separation? The new law facilitates joint custody in Spain, contemplated in the regulatory agreement. The priority is mutual agreement. If it does not occur, a judge or a judge will make the decision.
Before the entry into force of Law 17/2021 amending the Civil Code, dogs, cats, birds, turtles and other pets were considered a 'thing' or a 'valuable thing', so in the event of separation or divorce one of the parties could 'appropriate' that object.
Thus, for example, in the case of a separation of property, the person who owns the pet could get complete custody of it after the divorce or separation –as long as this animal had become part of the family during the marriage– , since it entered the process of liquidation of property, granting it an economic value.
Joint custody of a pet could be spelled out in a divorce agreement but it was a worthless legal consideration. It is from now on when the regulatory agreement can establish joint custody of pets, in terms of the distribution of time or the expenses originated by their care. Once the regulatory agreement has been drafted, it will be submitted to the court for ratification and approval.
The economic perspective prior to the reform is left aside to give priority to the ethical and moral point of view. Pets are considered members of the family and, as with minor children, a legal regime is established to regulate the relationship with the animal after the breakup.
The new regulation of the Civil Code only applies to married couples. In the case of unmarried couples who do not reach an agreement regarding the custody of the animal, the legal process is complicated because there is no applicable legislation.
In case of not reaching a separation or divorce agreement and the case goes to trial, justice will take into account the well-being of the pet. A lawsuit will have to be filed in court to request the regulation of custody of the pet.
The judge may establish a visiting regime or joint custody. To make his decision, it will be based on some of these criteria.
In contentious divorce proceedings, the reform of the Civil Code introduces these two novelties.
These measures may be modified when there is a substantial alteration of the agreed divorce circumstances. In any case, the rights of possession of the animal will be lost in case of abandonment of the pet or if it is transferred to a third person, among other causes.
All these modifications want to adapt the Civil Code to the true nature of animals, as well as to the relationships of coexistence that are created between them and people. It is about taking into account the interest of family members and the welfare of the animal above who owns it or who is in charge of it.
