Divorce: the interest of the animal better taken into account by the judges?

An Argentinian court has just ruled on the joint custody of a dog in the context of divorce proceedings, thus confirming the bond of affection between pets and their master. A rare decision, which 30millionsdamis.fr is delighted with and which will inspire – perhaps? – French law.

A new step towards the recognition of animal personality! The court of San Isidro (Argentina) established, on the occasion of a divorce, a regime of shared custody of two dogs, at the request of a couple (18/10).

Dogs, “non-human people with feelings”

The judge granted custody of Kiara (a 9-year-old dog) to her master, and that of Popeye (a 6-year-old dog) to her mistress. Above all – and this is the main thing! – the agreement provides for the possibility for the masters to alternate the custody of the dogs. According to the couple’s lawyer, Brian Knobel, ” dogs supposed to be considered “non-human people with feelings” “.

This decision appears to be a first in this country where courts had already recognized the fundamental “non-human” rights of certain animals, in this case primates kept in zoos: Sandra, an orangutan and Cécilia, a female chimpanzee. . Thanks to this consecration, both had been able to join sanctuaries.

The interest of the animal better taken into account in the event of separation

In France, although recognized as “living beings endowed with sensitivity” by the Civil Code since 2015 thanks to the work of the 30 Million Friends Foundation, animals subsist ” subject to property law “. ” A in my opinion, it is therefore the status of the property that would still dictate the solutionsobserves Maître Marc Azavant, joined by 30millionsdamis.fr. Common or separate property in the event of marriage, undivided property for the others [justifiant l’indemnisation de celui qui en a la garde, NDLR] “. Thus, an animal acquired before marriage remains – as “property” – with the person who adopted it. Likewise if it was acquired during the marriage by a single member of the couple. On the other hand, the animal adopted by the two partners becomes a “common good”. The ex-spouses could therefore either find an amicable solution, or – failing that – refer to the decision of the family court judge who will take into account the interests of the animal.

For the judge, the master is not always the one in title

An interest that is all the more considered, therefore, since the reform of the pillar of French law in 2015. Moreover, “ the pet owner’s name alone on the national I-CAD file cannot be considered as proof of ownership ! », warns the lawyer of the 30 Million Friends Foundation, Maître Eva Souplet. The judge must also take into account the attention paid by each spouse to the animal and the care that has been provided to it, but also the financial situation of the people, or even the interest of any children. Thus, a female dog could be designated to the wife who, as a veterinarian, was ” perfectly suited to take care of it (CA Bastia, January 15, 2014). The custody of a dog could be left to the husband as soon as his living conditions – house, garden – were ” more suited to the needs of the animal (Versailles CA, January 13, 2011). A judge also designated the custody of an animal to the spouse, insofar as the residence of the children was fixed at his home and that the animal took on for them ” special emotional importance (Ca Dijon, June 15, 2006).

Towards possibilities of alternating animal care in Europe?

If the French judges try to entrust the custody of the animal to the exclusive benefit of one of the ex-spouses (the one most able to take care of it); on the other hand, they remain very reluctant to pronounce joint custody of the animals, unlike children. “The concept of alternating residence is in principle a concept inherent in childrenconfirms Maître Sarah Saldmann (Village-justice). However, some ex-couples also apply it for their animal, amicably “. In the case of contentious divorce, some family court judges agree to decide the question, on request; but joint custody is only pronounced in very rare cases. In 2009, Maître Méjean confided to 30millionsdamis.fr that he had succeeded in obtaining, quite exceptionally, joint custody of a cat, every other week! More recently, ” a judge awarded contra legem [alors que la loi ne le prévoit pas, NDLR] keeping cats for one of the spouses, with visitation rights for the wifeexplains Master Xavier Bacquet, lawyer for the 30 Million Friends Foundation. A rare decision! »

In the interests of families and animal welfare

If French judges are still reluctant to pronounce joint custody, it is probably because no text allows it. “, postulates Maître Eva Souplet. ” Argentinian law is, in this sense, more advanced than French law.confirms Maître Bacquet. The addition, in the Civil Code, of a title 3 “Of Men, Property and Animals” contributed to giving animals a real juridic peopleand could thus the judge to order joint custody. “The national susceptible could, at the very least, be inspired by the Spanish law of December 2, 2021 which allows the judge to propose shared custody and fairly distribute any costs, in the interest of the family and well-being. animal. A few months before the promulgation of this law, in October 2021, a Madrid judge had ordered the joint custody of a dog named Panda, after the separation from his masters who had adopted him jointly: “ the love that one could have towards his pet does not exclude that the animal can also receive affection from others !

On good terms!

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