Animals in the division of marital property

For most couples, pets are not only companions but also family members. Therefore, when divorcing and further dividing the property, the problem often arises as to the care or maintenance costs of our dog or cat. As a rule, the rules regarding property apply to animals. However, it should not be forgotten that animal issues require attention and empathy. So what is the situation for animals in the division of property after divorce?

 

Animals in law

As a starting point, it should be assumed that in Polish law animals are treated ‘as things’, which means that they do not have the status of legal subjects. First and foremost, however, an animal is to be understood as a living being capable of suffering, which is not a thing (Art. 1(1) of the AIA). In matters not regulated by the Act, the provisions relating to things apply to animals accordingly (so that an animal can, for example, be the subject of a contract of sale).

Animals as an asset

In the case of community of property between spouses, the animal is treated as a joint asset. An exception to this is if one of the parties acquired the animal before the marriage, received it as a donation, or if it serves the personal needs of the spouse (e.g. if the dog helps the blind spouse). Then the animal is part of the personal property.

It is important to remember that when the court is deciding in the division of property to whom to award custody of the animal, it is first and foremost to be guided by the animal's welfare. The courts take into account, among other things:

• who primarily cared for the animal; - the animal's

• the living conditions;

• the emotional bond between the animal and one of the spouses.

In recent years, rulings have begun to appear in which the courts apply the provisions of the substantive law, taking the above into account. For example, in the decision of the SR in Slupsk of 9.06.2017. (I Ns 338/14, LEX no. 2322090), it was indicated that a pet dog, given the type of animal and the way in which it is cared for, should not be treated as a movable thing in civil law.

Maintenance settlements - is dog or cat maintenance possible?

All maintenance costs for an animal are to be borne by the owner or the person who has custody of the animal. Often these are very high amounts and after a divorce the question arises as to which spouse, for example, is to bear the costs of visits to the vet. In Polish law, there are no grounds for the court to order one of the parties to pay maintenance for the animal. This is different, for example, in Spain, where the family court of Pontevedra, based in the city of Vigo, ruled in one judgment that the dog would remain in the care of the woman, but that the man must pay for half of the ‘extraordinary and veterinary’ costs.

However, in Polish jurisprudence, the idea of counting the costs of the animal's upkeep towards the justified needs of the minor, to whom the pet theoretically belongs, is gaining ground. In such a situation, the maintenance costs of a dog or cat may be included in a suit for an award of maintenance to a particular person.

Care agreement

However, the best solution is to agree in advance what will happen to your pet. It is advisable to draw up an agreement specifying who will have custody after the divorce. This approach not only makes the division easier, but also minimises the stress of moving and adapting your pet. If an agreement has not been made at the marriage stage, also in the division of joint property, according to the principle of freedom of contract, the parties can agree on the custody of the animal.

If an agreement cannot be worked out, court action is possible in a separate action under Article 222 § 1 of the Civil Code, i.e. a claim for surrender of the animal if the animal is with the other spouse and the latter has no right to it.

To sum up...

The situation of animals in the division of property is an issue that requires attention and empathy. It is worth approaching the subject with an open mind and seeking solutions that will benefit both the divorcing spouses and their animals. Of course, the best solution is to work out an appropriate agreement out of court. However, in the absence of a consensus, the divisional court may make appropriate decisions - keeping in mind the welfare of the animal. Irrespective of this, it is also possible to take appropriate action as part of a maintenance process for the minor to whom the pet belongs, or to make a claim for the surrender of the animal.

However, it is important to remember that thoughtful arrangements can help to maintain the stability and welfare of the animals, which also need our support during the difficult period of divorce.