Animals and Divorce: Animal Interest to be Considered in Divorce Under New Spanish Law

It goes without saying that pets are increasingly viewed as members of the family and people develop strong bonds with their animals. Despite the role a pet may play, the law in Canada is clear – pets must be treated as property to be divided in the event of a separation/divorce.

This principle was recently affirmed in Schindle v Schindle 2021 ABQB 99 as the Honourable Justice M. Hollins considered an interim application for access to the family dog. The parties were unable to agree on arrangements for the dog and both parties approached the Court with varying evidence in support of their connection to the pet. This included time spent with the dog, purchases made for the dog, and the emotional support provided by the dog. While the Court acknowledged the difficulty in determining matters such as these, it held that it is inappropriate to make custody rulings in what is a property matter.

Although the law seems settled in Canada, there was a new law passed in Spain that classifies animals as “sentient beings”. The change in legislation provides animals with a different legal protection than that typical of an inanimate object. The definition extends to both wild and domestic animals. A Spanish publication, El Pais, summarized the effect of the law as follows:

Animals will no longer be able to be seized, abandoned, mistreated or separated from one of their owners in the case of divorce or separation, without having their wellbeing and protection taken into account.

Animals were previously recognized as sentient beings under European law, however, it had not been adopted by Spain’s Civil Code. This recent change provides lawyers with a legal basis to argue what is ultimately best for the pet in the event of separation (i.e. which party will provide a better life/home to the animal). In other words, the interests of the animal must be considered by the Court. The change in legislation is considered a big win for animal rights activists and it is expected to curb some of the 200,000 annual abandonment cases.

Perhaps the new movement in Spain and Europe will eventually make its way across the pond to Canada. However, for the time being, pets remain family property.