In 2021, Spain approved the Bill to amend the Civil Code, the Mortgage Law and the Civil Procedure Law, on the legal regime of animals, which recognises animals as “sentient beings” and “endowed with sensitivity” and introduces reforms in different judicial processes, such as divorces, evictions or wills so that they are no longer considered ‘things’.
Since the approval of this law, court rulings from different jurisdictions have taken pets into account in divorces, addressing aspects such as which spouse they will live with, as well as visitation regimes or even compensatory pensions.
Now, one such case has reached the Supreme Court, in which a woman is asking her husband, who had filed for divorce, for alimony and financial contributions for the care of her two cats, who live with her, alleging that she has no income and that her husband had neglected their care. The couple is childless.
The Court in Bilbao previously rejected a compensatory pension in favour of either spouse and decreed that the cats would live with the woman if there was no other agreement and that the expenses should be shared.
In this regard, the ruling stated that “the expenses of the two cats that have been the family pets will be paid in half” and that “the expenses of the animals that exceed mere food and are not strictly necessary must be agreed upon by both parties for their payment in half.” “Otherwise, they will be paid by the one who has unilaterally decided on the expense,” it pointed out.
This ruling was appealed by the woman, who requested compensatory pension, and contested by the husband, who claimed that he had never lived with the cats and that the financial contribution was presented directly at the hearing, which prevented him from presenting evidence.
The second ruling, written by the Provincial Court of Vizcaya, ruled in favour of the husband and deleted the third paragraph of the ruling, corresponding to the expenses of caring for the two cats.
In this regard, the Provincial Court pointed out that the request to establish the contribution to the expenses of the animals should have been raised by the wife at the time of answering the claim, so that the plaintiff husband could make allegations and propose contradictory evidence.
As for the costs, the Court reasoned that the issue should be the subject of debate and properly introduced in the proceedings. However, the woman’s defence claimed that the pets were adopted by mutual agreement and there was no lack of defence, because the issue was introduced in the hearing, and at the time he was questioned about the animals he was able to declare what he considered appropriate.
Furthermore, it refers to the law for animals to stop being things, which requires the judge to determine the distribution of the burdens associated with the care of the animal regardless of the moment in which the issue was introduced into the process.
Finally, the Supreme Court agrees with the criteria of the Provincial Court, arguing that, regardless of what the law establishes regarding the burdens of caring for animals, this claim was not properly introduced when determining the object of the civil process.
It also states that the situation of cats is not a question of “necessary rights”, as this would only apply if there were an animal welfare problem or if one of the interested parties is a minor, a person with a disability or is in a situation of legal absence.
“In light of the above considerations, the appeal for cassation will not be upheld, since it is not apparent that the claim introduced by the defendant appellant at the hearing and by which she requested that the plaintiff husband assume the expense of caring for the cats that were with her should be exempted from the general principles that govern civil procedure when determining the object of the process,” they point out.
On the other hand, as regards the compensatory pension, she points out that she only referred to the expenses of the cats that lived with her as one of the reasons that in her opinion justified the fact that, having no income, she needed the recognition of a pension. “But with this she did not exercise the claim that a distribution of charges regarding the animals be established, something that she did for the first time in the hearing,” they insist.
“By introducing for the first time in the hearing her request that the husband contribute to the expenses of the animals, the defendant wife attempted to surprisingly alter the subject matter of the trial, limited to the divorce and the recognition or not of a compensatory pension, so the judge cannot respond to a question on which the other party has not been able to defend itself,” they conclude.
