Can a pet be considered a “child” in a separation? The answer is yes. When a couple separates, they should discuss who will take care of the pet and how the other will contribute to the pet’s expenses.
Animals are sentient living beings, as determined in our regulations. What does this mean? In that we must consider them as a party in a separation or divorce process.
Many clients ask me: Does it make a difference where I go for divorce proceedings whether I have more or less rights to the animal? The answer is no. However, we must know that in some places it is foreseen what happens to pets in a divorce proceeding and in others it is not.
In this sense, by way of example, if I process a separation or divorce in Madrid, the regulations of the Civil Code will be applied to me. In this regulation it is foreseen (art. 90.1 b) bis) of the Civil Code), that the parties, in the Regulatory Agreement, determine, among other issues, the destination of the pet, the distribution of time with him, the contribution to the burdens derived from his care, etc.
In the case that the separation or divorce is processed in Catalonia, we have to take into account that there is no regulation similar to the previous one in the Catalan legislation. What do the judges in Catalonia do in this case? They apply the previous regulation in a supplementary way and pronounce on the destination of pets in separation or divorce proceedings.
Therefore, the judges, regardless of where they are located, apply the same criteria as the rest of the judges in the Spanish territory. In this sense, they will always prioritize the welfare of the animal.
Although it is true that, in a separation or divorce process, the agreement between the parties comes first, in the event that there is no agreement, then it will be the judge who will decide on the custody, visits, distribution of economic burdens, etc., of that pet. Little by little, progress is being made and pets are being protected to a greater extent in cases of family crisis. Let us hope that with time there will be more advances.
Anna Nicolàs Torán
Expert in Family Law
M&C Attorneys at Law
