At the time of divorce, it is time to take stock. Everyone leaves with what they have brought and the common goods are shared. The custody of the children is pronounced with the aim of respecting the interests of the latter. But what about pets? Since January 2022, Spain has recognized animals as “living beings endowed with feeling”. The judge is responsible for deciding on joint custody or granting sole custody to one of the spouses with access rights. And how are things in France? Isabelle Gharbi-Terrin, animal protection lawyer in Marseille, answers us with three questions.
What is the status of pets today in France?
Jurisprudence is still in its infancy. In 2015, the animal went from the status of “furniture” to that of “life endowed with sensitivity”, but legally it remains subject to the property regime. We took a step forward and a step back. The animal is in levitation between the status of furniture and person. So we are at an experimental stage in considering the animal as a being with sensitivity.
How is their case handled in divorce?
In France, during the hearing where the judge hears the spouses, he attributes the enjoyment of furniture or buildings to one or the other. When the two spouses fight over the animal, we’re not talking about custody, because it’s a piece of furniture. Just like in Spain, to decide who the animal will be most welcome, the judge will look at which of the two spouses the animal has the most emotional bond with. It even happens that an alternating wait is spoken.
However, there are still many judges who think that whoever paid for the animal should enjoy it. As a result, the animal is often used as a child in divorce or divorce proceedings. Some people take their animal “hostage” to hurt the other: “You love your dog, but I paid for it, so I’m going to rob you of your animal”.
It is to avoid these dramatic situations that, as for children, the judges must decide on the basis of the animal’s superior interest and not on human quarrels, which are often pathetic.
The judge must take the animal’s welfare into account. Make him wonder where best to be, without considering material questions. He is a sensitive creature and this sensitivity must be taken into account. It is not the person who will present the bill who must necessarily win, as would be the case with a car or a TV.
What needs to be done to improve the situation?
In French law, the summa division cuts everything that exists on Earth into three: furniture, people and buildings. Today, animals are subject to furniture law. To arrest their case with more benevolence, however, would require a fourth block that includes the living: animals, trees, forests, rivers… We cannot judge what is alive as something that is not. The real criterion is to live! One cannot rule over a tree as one would rule over a chest of drawers which is a piece of dead wood…
It is necessary that the legislator decides to catch up and that we finally have a right that takes into account the status of live animals so that the courts judge with due regard for this sensitivity.