Recently, family processes have been ruled out by the courts to allow dogs, cats or other Pets or pets with one or the other party or, where appropriate, minors, and how they must contribute to the expenses incurred by that animal.
Without any implication in this regard in the regulatory rules of marriage crises, which are barely regulated in the Civil Code, forensic solutions The simplification presented to these discussions can be grouped into two main streams:
- Pets are movable property (art. 333 CC – pre 1-5-2022 regulation and article 335 CC) – or livestock if preferred – subject to the general rules of property management, so no liability leaves the fast track to any specific agreement of the litigants. entrenched in family processes, although
- a pet a family member In addition, it is subject to the measures that can be taken regarding detention, visits and expenses, as well as legally included in our legal system in the relevant judicial decision (art. 90 and 91).
In any case, the whole doctrine agreed on the need for a legislative reform that would solve the difficulties of taking measures in today’s society on goods that have such special connotations for human beings, without the actual need for an equivalent comparison with that of children. are far from being considered more movable or property than those that make up the congregation or community of the married or couple.
News after pet custody reform
In the light of the regulation of the Civil Code, Law No. 17/2021 of 15 December amending the Law was approved, resulting in the legal status of things traditionally given to animals, especially movable property status. Mortgage Law and Civil Procedure Law, legal status of animalsrecognizing their quality as sentient beings, similar to other close legal systems that change their laws to adapt to the greater social sensitivity that exists today towards animals.
Effective as of January 5, 2022, it brings about changes in various provisions, primarily the Civil Code, the Civil Procedure Law and the Mortgage Law, in order to adapt to this social sensitivity towards animals and to accept animal quality. sensitive creatures.
The nature of animals is different from the nature of objects or things, and such a principle should govern the interpretation of the entire legal system. To adapt the Civil Code to the true nature of animals and their relationship with humans, the following provisions have been introduced:
- Real rights and subject of sale (art. 333, 333 repeated, 334, 346, 348, 355, 357, 404, 430 to 432, 437, 438, 460, 465, 499, 610, 611, 1484, 1485, 1492, 1493) and 1864 CC, clause 612.3 CC repealed L 17/2021).
Although animals are sensitive creatures, it is not excluded that the legal regime regarding goods or goods should be applied in certain matters, unless there is a special regulation regarding the legal relations they may be involved in. such a legal regime is compatible with its nature and protection. A gradual extension of the protection regime to all areas involving animals is being followed.
On the other hand, although animals are generally suitable and tradable, the relationship between person and animal must be modified by their qualities as sentient beings and the rights and abilities exercised upon them. welfare and protectionavoiding abuse, abandonment, and cruel or unnecessary death. This situation necessitates the adaptation of the concepts of profession, natural fruit, discovery, liability for damage and hidden defects in their application to animals. In addition, it is regulated that pets cannot be the subject of pledge.
- arrangement coexistence and care of animals in case of marital crises (article 90.1.b en, 2 and 3, 91, 92.7, 94 bis, 103.1 bis and 1346.1 CC).
Agreement regarding pets is stipulated and criteria are set by which courts must decide who will take care of the animal, taking into account the welfare of the animal. Among other provisions, the following were established:
— including your destination, times to be together and the costs associated with your care in the regulatory agreement and the actions taken by the judge if the agreement seriously harms your health;
– the possibility of requesting changes in pet-related measures in case of a serious change in their condition;
– inadmissibility of joint custody animal abuse or threatening to cause harm in order to control or victimize spouse or children; anyone
– determination nature of animal care the right to be accompanied by the judge, as well as the visitation regime for the spouse, regardless of his property, whose custody has not been assigned to him.
- Inheritance provisions, without a testament to this effect, provisions regarding the destination of animals in case of death of their owners are also governed by the animal welfare criterion (art. 914 repeated CC).
Civil prosecution law
- Pets, in view of the emotional bond they have with the family they live with, without prejudice to the sequestration of income from the animals in question (art. 605 LEC).
- The nature of the companion animals, their cohabitation and their needs are among the issues that should be taken before the cancellation, separation and divorce request, in case of emergency, and if there is no agreement of the parties, definitive measures should be taken. . spouses or their disapproval (clauses 771.2 and 774.4 LEC).
Livestock, animals placed on or allocated to a farm set aside for industrial or recreational exploitation are no longer likely to be mortgaged and any agreement to extend the mortgage to companion animals is prohibited (article 111 LH).
Who gets a pet in case of divorce or separation?
Civil Code a pet custody regime introducing the possibility of an agreement between the parties regarding pets in marital crises and, where appropriate, determining the criteria on which the judge will base his decision, giving priority to the welfare of the animal to whom to transfer the care of the animal. be.
The care of pets can be entrusted privately or jointly to one or the other spouse and, in one way or another, determines the ways of accompanying them. He also divides the burdens of caring for the animal among the spouses.
These determinations are reached by giving weight. interest of family members and animal welfare, regardless of the owner of the pet and to whom its care is entrusted. This should be recorded in the relevant animal identification log (article 94 CC double).
Friendly Pet Custody Agreement
In addition to parent-child measures, the regulatory agreement should include, at a minimum, and where applicable, the use of the family home, the visitation regime, alimony, etc., the destination of the pets, if any (clause 90.1. b) bis CC).
These agreements should be made taking into account the interests of family members and the welfare of the animal; the distribution of cohabitation and care periods If necessary, expenses related to the care of the animal. It should be understood that in another case of CC article 90.2, the judicial authority may order that such measures concerning the destinations of pets be taken without prejudice if such measures are seriously detrimental to their well-being. outside the ratified agreement.
In contracts with the court’s attorney or notary public, if they consider it harmful or seriously harmful to the health of the pets, they must terminate the file after giving notice to the grantors. In this case, the spouses can only appear before the judge for the approval of the regulatory agreement proposal (art. 92.2 CC).
It is also possible to modify these measures through a formalized agreement or a public document before the LAJ or with approval by the judge as appropriate (Article 92.3 CC).
Pet custody in case of dispute
In the event that an agreement cannot be reached in the separation or divorce process, it will be the judicial authority that determines the measures of these processes. From 5 January 2022, these measures include the destination of pets (Art. 91.1 CC).
After the marriage claim has been admitted, in the absence of a judicially sanctioned agreement, the Judge may grant the marriage claim. temporary measures Precautionary measures to protect the right of each in relation to children and to entrust the care of pets to one or the other spouse or to both, and any other measures they may have in one way or another in their company. In addition, in this case, temporary measures should be taken for the benefit of the family members and the welfare of the animal (art. 103.1 bis CC).
Pet custody if circumstances change
In addition, both mutually agreed measures and judge-determined measures, including those relating to pets, may be amended, as appropriate, through an agreement formalized in the LAJ or in a public deed or approved by the judge (art. 92.3 CC) or change by litigation (art. 91 CC) on the ground that they had significantly altered the conditions considered at the time of its adoption.
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