Divorce: who will keep the animals?

Since the beginning of 2022, pets are now taken into account in the management of divorces in Spain. As reported by 20 Minutes with AFP, a bill brought by the government coalition is part of a global desire to better protect pets, within the civil code. Wild animals will not be outdone, for example those exploited in circuses, as explained by El País.

One case set a precedent in 2019, described in El Español: that of Cachas, a West Highland terrier owned by Carlos and Silvia. At the time of the divorce, lawyer Antonio Berdugo argued for joint custody for the good of the dog. The Valladolid trial judge declared co-ownership of the animal, six months of residence with Carlos and then with Silvia and the equal sharing of costs, on the grounds that Cachas’ sensitivity had to be taken into account.

Being legally considered as a living being endowed with sensitivity and more like movable property, the cat or dog of the Spanish household becomes an additional parameter to be arbitrated in a litigious separation. Each judge must assess the present and future quality of life of pets, including the distribution of veterinary care to be provided, the choice of residence for the animal if one of the two spouses has a history of violence towards him or other members of the household, or as part of an estate after a death, so that the animal is neither abused nor abandoned. A measure all the more necessary as many abandonments of domestic animals are observed in the country: 150,000 to 300,000 every year, according to RFI.

Not a new subject

Meanwhile, how is it going in France? What legal status do pets have? Who can record their new home following the divorce of its owners? Would a legal framework similar to that in Spain protect against painful separations both for human beings and for their four-legged companion?

Alimony was even decided once, following a judgment at the Créteil tribunal de grande instance in 1979.

The question of keeping animals during divorce has already arisen in France in recent decades. In an article published in 2009 on the 30 Millions d’Amis website, a lawyer, Maître Méjean, recounts having had joint custody applied to a cat some twenty years earlier. This case was nevertheless unique as it “litigated more than 6,200 cases”.

In this article, the jurist Valérie Svec, author of the book pet rightsalso explains that “The courts are more and more numerous to hear claims relating to the custody of the animal” after a divorce. Alimony was even decided once, following a judgment at the Créteil tribunal de grande instance in 1979.

According to article 515-14 of the civil code, resulting from a law of February 16, 2015, “Animals are sentient beings. Subject to the laws that protect them, animals are subject to the property regime. They were previously considered as movable property (article 528 of the Civil Code), and remain considered as property, except in exceptional cases. “In the event of separation of a couple, no text provides for any particular provision with regard to the pet. Consequently, in the event of separation, the pet is subject to the same rules than the other property of the couple.

Different tracks

Agathe Wehbé, lawyer at the Paris Bar, returns to the possible hypotheses depending on the case of the couple in the process of divorce. Thus the animal remains common property if it is acquired with common funds in the household, but is separate property if it is acquired before marriage or the PACS by one of the two people, unless the marriage contract explicit, or with own funds (donation or inheritance).

In practice, if you move in with your great love and his charming dwarf Spitz, you will have no rights over the latter in the event of separation, unless you marry and agree to a contract providing for the terms of custody of the dog.

Animal welfare comes first.

An oral agreement is not enough, especially if the rupture occurs in a violent context. Blandine confides that she had to leave the adopted cat with her former partner at the latter’s place for the time to find a stable situation and rebuild herself. The animal became an object of post-separation control:

I then sent a registered letter with the support of a lawyer to recover my property and consider shared custody. Even if it implied an obvious courtesy relationship to maintain, after all that my ex did to me, I wanted to see my cat again. I had no response. I didn’t have the mental strength to embark on a longer legal process, and then learned that the cat, which we had never taken to a vet, had been identified and sterilized by my ex’s family. . I therefore no longer have any rights over this animal, which I nevertheless raised and pampered. In the eyes of the law, it belongs to them.”

All one or all the other

Agathe Wehbé continues: In the hypothesis, the problematic one where the animal is common: how to determine who will keep it? The family court judge can rule on the question on a provisional basis to assign who keeps it and ensures the needs of the animal according to pure species elements. Who has the space to welcome him, or the more suitable working hours to take him out for a walk. Once this decision has been obtained, it must then be enforced. No bailiff bothers to embark on a story of forced execution of a decision relating to the animal if the person who lost custody refuses the other to return it to him.

“A beginning of a solution consists in asking the judge directly to set a penalty payment, an amount to be paid for each day of delay in execution. It is often quite effective, concludes the lawyer. It can be requested directly from the judge when he rules on the question of the management of the dog on the basis of article L131-1 of the code of civil enforcement procedures.

Do not hesitate to anticipate the question of custody of the animal in the event of separation when deciding to adopt, and discuss it with your lawyer during the divorce proceedings. The well-being of the animal takes precedence: thus we do not force a cat, of territorial nature, to leave its usual dwelling and we do not force a dog to live without its two to three walks a day. This is “dog or nothing”according to Liberation.

Same question in the event of death in the family, causing many traumatic abandonments for the animals. We would surely benefit from taking inspiration from the Spanish model on this point, as well as the correlation between intra-family violence and violence against household animals (a concept that is slowly beginning to be known in France, described by Audrey Guiller and Nolwenn Weiler for Axelle), to ensure a healthy life for animals while protecting victims of violent spouses.

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