Divorce and Dogs: Shared Custody?

Pets and divorce seem like two incompatible topics. Faced with the sensitive matter of a separation, it's worth considering possible shared custody for the dog. Pets are part of the family, and as such, in many cases it's difficult to decide who they should stay with.

In Spain, the Civil Code has amended several articles to recognize companion animals as sentient beings. Below, we detail everything this change involves.

The Spanish Civil Code and Dog Ownership

In early 2019, an amendment to the Civil Code was approved, specifically to the sections corresponding to the Mortgage Law and the Civil Procedure Law, regarding the legal status of animals.

Before this amendment, companion and working animals (livestock, among others) were considered movable property. As such, they could be seized for unpaid debts. Thanks to this legal change, domestic animals, dogs included, are now considered sentient beings.

This amendment introduces changes when it comes to divorce. A dog doesn't understand that its owners are separating; therefore, this law protects the animal's rights so it isn't separated from its owners, in case both want to continue enjoying its company.

Who Is a Dog's Legal Owner?

Despite their new status as sentient beings, when it comes to divorce, dogs still fall under the category of "movable property." Having a dog at home is a private property relationship that comes with responsibilities, like meeting all the pet's needs, ensuring its wellbeing, and not mistreating it.

Facing a divorce in Spain, the first thing to do is establish ownership of the pet. There are three scenarios:

• The legal owner of a dog acquired before marriage is whoever acquired it. The other person has no rights over the pet.
• Both members of the couple are legal owners if the dog was acquired during the marriage.
• If the dog was acquired during the marriage, but there's a separate property agreement, the owner is whoever adopted it and covered most of its expenses. To determine this, the pet's appearance in documents is considered, such as adoption certificates, vaccination records, and other veterinary reports.

These are the ways to establish ownership of a dog. Shared custody of dogs applies, then, to couples who acquired the pet during marriage, without a separate property agreement.

Regulatory Agreement or Mutual Agreement

The first step in a divorce is considering a mutual agreement, meaning reaching a deal with your partner regarding the dog's custody. This happens if one member of the couple prefers to hand over custody of the animal to the other.

Once this agreement is reached, a regulatory agreement is drafted. This document records the deal the couple reached, detailing who'll have custody of the dog and the cost of its upkeep, among other aspects.

When no agreement is reached, the case is brought before a judge to determine whether custody will be shared or sole.

Sole Custody of Dogs

The judge can rule sole custody of the dog, even when both parties want to keep the pet. Sole custody is granted upon showing one spouse isn't financially able to support the dog, or when it's proven they've mistreated it.

This custody ruling includes compensation for the person who loses the right to enjoy the dog.

Shared Custody of Dogs

The legal change established in Spain's Civil Code also allows for the possibility of shared custody. If both spouses want to keep enjoying the dog, the judge proposes a visitation schedule and determines who'll handle the dog's primary care.

One of these scenarios often comes up:

• A visitation schedule is set. If one spouse has more financial means and time to dedicate to the dog, it'll live at their home. The other person can visit the dog according to what's established by the court.
• Alternating stays at both people's homes. This is an option if the owners will live in separate locations. The dog can alternate staying several months at each person's home. This way, it stays in contact with both owners, and they both continue enjoying the pet's company.

How Is Custody Determined?

When no regulatory agreement is reached, the decision is made at trial. Several aspects are taken into account:

• The parties' financial means.
• Time available to dedicate to the dog.
• History of mistreatment (if any).
• Presence of children in the family unit.
• The pet's wellbeing.