Pets are not "things"
Legally, however, until the recent Law 17/2021, of December 15th, amending the Civil Code, the Mortgage Law and the Civil Procedure Law, on the legal regime for animals, our legislation, especially the Civil Code, it had been integrating animals into the generic category of “things”. Said law supposes a paradigm shift, recognizing that animals are “living beings endowed with sensitivity”, which does not exclude that the legal regime of goods or things be applied to them additionally as compatible.
And why this legal reform? After a divorce, in the case of having common children, custody and responsibilities for each of the parents must be regulated; evidently, the common goods of the marriage have to be divided. For some time now, moreover, it is more and more common for the question to arise as to who is left to care for the pets in the event of a couple's divorce and what right the other has to visit or stay with the pet. It is something that is also beginning to arise in our courts and tribunals.
With the entry into force of Law 17/2021, in divorces it must be necessary to mention the pet care regime, and this will be stated the fate of pets in the regulatory agreement if it is by mutual agreement or in the sentence if it is contentious. Thus, pet animals will be entrusted to one or both spouses for their care and the way in which the spouse to whom they have not been entrusted may have them in their company will be determined, as well as the distribution of charges associated with caring for the animal. All this in the interest of family members and the well-being of the animal, regardless of who owns it and to whom it has been entrusted for its care.
The law also introduces the novelty that mistreatment of a spouse or children - which is cause for exclusion from joint custody - also extends to mistreatment of animals, or the threat of causing them, as a means of controlling or victimizing (giving way to the so called vicarious violence).