Legal Status of Pets in Portugal
The relationship between humans and animals has undergone profound changes in recent years, a circumstance that has greatly contributed to the centrality of pets in the lives of many families, where they are recognized as true “four-legged” members.
The legal system is no stranger to this evolution, having recently come to recognize animals as living beings with sensitivity, subject to legal protection and endowed with their own legal status, established by Law no. 8/2017, of March 3.
In addition to making significant changes to the Civil Code and the Criminal Code, this statute also introduced the concept of “ pets ” into the Civil Code, especially in the Family Law Book.
Although this concept does not have its own legal definition in the Legal Statute of Animals, doctrine and case law[1] have been based on the criminal definition of “companion animal”, introduced in 2014 with the criminalization of mistreatment and abandonment of this special category of furry friends (cf. Law no. 69/2014, of 29 August)[2].
Thus, a pet can be considered to be “any animal kept or intended to be kept by human beings, namely in their home, for their entertainment and companionship” (see art. 389 of the Criminal Code).
This is therefore a very broad concept, which is not limited to protecting the most common species of pet, such as cats and dogs, but can cover any animal, regardless of its species (even an octopus!) [3].
Although there is still no case law that qualifies a less conventional species as a “ pet animal”, what matters for the legal definition is the socio-economic destination of the animal, excluding from this notion all animals used for agricultural, livestock or agro-industrial purposes or even those used in commercial shows – in short, all those that are not intended for the entertainment and company of their owners.
It should also be noted that a pet does not cease to be a pet because it does not live with its owner – or “guardian”, as it is now customary to say – and may be kept at its owner’s home or in another space specially designated for it.
We will now analyze the special provisions on pets introduced in the Family Law Book. Despite this legislative effort, there is still a legal vacuum in this area, which contributes to enormous uncertainty and fear in families about the fate of their pets, especially in cases of divorce and separation.
The legal classification of pets as assets of the couple
Although pet animals are recognized as “living beings endowed with sensibility”, the legal provisions relating to property continue to apply to them in everything that is not specially regulated (cf. art. 201-D of the Civil Code).
One of the aspects to be taken into account in the legal treatment of pets is therefore their ownership, i.e. who owns the pet and even whether their property value should be taken into account when dividing assets after divorce or in property relations between unmarried partners after separation.
With the Legal Status of Animals, in 2017, the legislator introduced only one legal provision in this regard: Article 1733(1)(h) of the Civil Code, which establishes the incommunicability of pets adopted by one of the members of the couple before the marriage was celebrated.
This means that, regardless of the couple’s property regime, pets adopted before marriage by one of the spouses will always be considered their own property, and their ownership will not be extended to the other members of the marital family.
This will not be the case with pets adopted during the marriage, which may be considered common property under joint ownership regimes, under the general terms. In separation regimes, as in civil partnerships, co-ownership of the animal will be presumed as a rule, unless one of the members of the couple can demonstrate that they acquired it alone (cf. art. 1268(1) of the Civil Code).
In addition to mere ownership, the registration of ownership of the pet in the Pet Information System (SIAC) may be relevant to the presumption of ownership, especially for species that are compulsorily registered (dogs, cats and ferrets – see art. 4, no. 1, of Decree-Law no. 82/2019, of June 27).
The legislator does not, however, clarify whether the asset value of the pet that qualifies as a joint asset of the spouses should be taken into account in the sharing of assets, although it is true that, at least in cases of divorce, the fate of the pet is specially regulated and can be attributed to either spouse, including the non-owning spouse[4]. It therefore remains to be clarified how this assignment of the animal to either spouse compares with the rule that determines the incommunicability of animals (art. 1733, 1, h) of the Civil Code).
The fate of pets in the event of divorce
There are two types of divorces in Portugal, either by mutual agreement or without the agreement of one of the spouses (cf. art. 1773(1) of the Civil Code).
Divorce by mutual agreement, on one hand, can be administrative or judicial, the former being processed in the civil registry offices and the latter in the courts. Divorce by mutual consent will only be of an administrative nature when the spouses manage to reach agreement on the complementary issues to the divorce provided for in Article 1775(1) of the Civil Code, one of which is the fate of pets, if they exist.
This legislative option has been subject to a lot of criticism, firstly because the requirement for this agreement is likely to hinder or even compromise access to administrative divorce by mutual agreement.
Another criticism of this system, which is directly related to animal welfare and the importance of the pet’s emotional relationship with the other members of the family, is the fact that there is no means of controlling or scrutinizing the content of this agreement in this type of divorce.
In fact, unlike other complementary divorce agreements, the registrar cannot ask the spouses to change the agreement if he or she considers that it does not sufficiently protect the interests of one of the spouses or the couple’s children (cf. article 1776(1) of the Civil Code).
In other words, even if the registrar considers that the agreement is inadequate, either because the pet is destined for a spouse without the material means to ensure its basic care, or because the agreement does not guarantee contact between the animals and the couple’s children or the other spouse, he or she can do nothing and is still obliged to approve the divorce [5]. This circumstance is particularly problematic in the Portuguese case, since the law does not provide for the possibility of changing this agreement once it has been ratified, as will be detailed below.
In cases of judicial divorce by mutual consent, the judge will already be able to invite the spouses to amend the agreement on the fate of pets, if one exists, and in other cases he will decide according to his prudent discretion, as if it were a divorce without mutual agreement (cf. art. 1778-A, paragraphs 2 and 3 of the Civil Code).
In this regard, it should be noted that Article 1793-A of the Civil Code, which deals with the fate of pets in cases of divorce without consent (also known as litigation), only provides for the possibility of animals being entrusted to one or both spouses, and does not allow, for example, the possibility of the animal being entrusted to a third party, or even to the couple’s children [6], which would often be justified in view of the animal’s well-being or the interests of family members.
Despite establishing to whom the animal can be entrusted, and the criteria that should govern the decision on entrustment, the legislator does not say anything more about the other aspects relating to the fate of the pet, i.e. whether or not there is the possibility of establishing a visitation regime or whether there is any obligation for the spouses to share the animal’s expenses.
This last aspect is also related to the vagueness of the legal consequences of the decision on the destination, especially the question of whether the decision to entrust the pet to one of the spouses results in the transfer of the right of ownership from one of them to the other, or the end of co-ownership, where this exists.
In this regard, the doctrine has come to understand that the regulation of the animal’s fate is unrelated to ownership, which remains the same and, as such, the obligations of the spouse who owns the animal to ensure its well-being (art. 1305-A of the Civil Code) regardless of its fate, or even if it is not entrusted to them [7]. However, at the same time, it is advocated that the registration of the animal’s ownership in SIAC be changed within 15 days [8], which seems to presuppose a modifying effect of the agreement/decision on the fate of the pet, as far as the couple’s property rights are concerned.
Notwithstanding the above, we already know of a court decision which determined that the spouse to whom the pets were not entrusted should pay the other a fixed monthly contribution in order to cover the costs of the animals. It should be noted, however, that this decision was justified because the regulation of the fate of the animals was still provisional, and the court could not yet predict, in the end, to which of the ex-spouses the animals would be entrusted (Judgement of the Porto Court of Appeal, of 29-04-2021, case no. 2189/20.3T8AVR-A.P1, available here).
Despite the difficulties, in terms of legal certainty, arising from the vagueness of this regime, it contributes to a wide margin of freedom for the parties and the courts in defining the fate of pets following divorce. There is therefore nothing to prevent them from opting for the joint or exclusive trust solution they consider most appropriate, and they can even establish alternate residence arrangements and visiting rights, in a similar way to those applicable to the couple’s children.
The fate of pets in the event of the breakdown of a civil partnership
While the effects of divorce include a decision on the fate of pets, this is not the case for unmarried couples in the event of a break-up.
Due to the substantive differences between marriage and de facto unions, a significant part of the doctrine continues to deny the analogical application of the provisions relating to marriage/divorce to civil partnerships, thus defending a total legal vacuum in this matter, similar to what happens, in general, in cases of death of the animal’s owner.
There are therefore many uncertainties as to what should happen in these cases, with doctrine and case law divided between defending the application of the general regime of property and defending the possibility of bringing an action to regulate the fate of companion animals in the family and minors courts, by analogous application of article 1793-A of the Civil Code.
For this first current, in cases where the animal is co-owned by both partners, it may be possible, for example, to resort to a special action for the division of common property, in order to put an end to the co-ownership, with the consequent allocation of the pet to one of the partners (cf. articles 925 and following of the Code of Civil Procedure). Such proceedings fall within the jurisdiction of the Local Civil Courts, and not the Family and Minors Courts (in this regard, see the Coimbra Court of Appeal ruling of 26/04/2022, available here, which ruled on the jurisdiction to hear an application for provisional restitution of possession, after one of the ex-partners stopped complying with the agreement reached by the ex-couple regarding the shared custody of their dog).
Although the application of the regime of property has good results in cases of co-ownership, with clear consequences for the ownership of the animal and even allowing the partner to whom the pet is not awarded to be economically compensated for its “loss”, the application of this regime does not seem to allow for the protection of the non-owning partner.
In cases where only one member of the couple is proven to own the animal, the other will lose any rights to live with the animal (as well as the couple’s own children), unless there is an agreement to the contrary or the couple enters into a cohabitation contract that provides for this possibility.
In this sense, the current that defends the analogical application of art. 1793-A of the Civil Code has clear advantages, and the case of Kiara, a pit bull dog, who was entrusted to her owner after a separation between lovers, is even known in civil society, in a case that took place in the Judicial Court of the District of Lisbon West, Family and Minors Court of Mafra, and where expert opinions were even determined in order to assess the dog’s behavior towards each of the owners (see news available here).
In this regard, and although there are no complete statistics, there seems to be an increasing number of lawsuits filed with the Family and Children’s Courts, with a view to declaring the transfer of the civil partnership and, as a result, regulating the fate of pets (in this regard, and although related to another topic, reference is made to a lawsuit with this configuration in the Judgment of the Guimarães Court of Appeal dated 24/09/2020, available here).
The possibility of changing the agreement on the destination of pets or reacting to its non-compliance
The law does not provide any specific means for petitioning to change the agreement on the fate of pets reached in the divorce, nor for regulating their fate.
In the absence of any legal provision, it is believed that the best way to obtain protection in these cases will be through a declaratory judgment lawsuit, in the form of ordinary proceedings, which will fall within the jurisdiction of the Local or Central Civil Courts.
In this regard, it should be noted that, unlike the case of the allocation of the family home, the Code of Civil Procedure does not provide for special voluntary jurisdiction proceedings relating to the fate of pets that could justify the jurisdiction of the family and minors courts, under the terms of Article 122(1)(a) of the Code of Civil Procedure. Also, paragraph g) of that provision, which provides for the jurisdiction of these courts to prepare and judge “other actions relating to the civil status of persons and the family”, has been understood as referring only to the strict sense of “civil status”, i.e. personal conditions or qualities that have as their source family-legal relationships (on this issue, see the Judgment of the Coimbra Court of Appeal, of 11/10/2016, available here).
This does not mean, however, that in the future case law will not be able to defend the jurisdiction of the family and minors courts for these actions, by reference to one of the aforementioned paragraphs or others. What is certain is that, despite the relative longevity of the Legal Status of Animals and the introduction of Article 1793-A of the Civil Code, this issue has still not been clarified by the higher courts, probably due to the small number of lawsuits with this object filed in Portugal.
Assets division and economic compensation
As mentioned above, the integration of the pet’s property value in the division, or even the possibility of economic compensation for its trust to the other spouse, will depend, prima facie, on the concrete effects of the regulation of the pet’s fate on the property rights of the spouses (or of the unmarried couple, for those who defend the analogous application of article 1793-A of the Civil Code to situations of breakdown of the civil partnership).
If it is understood that the regulation of the place of destination has no impact on the ownership of the animal, the transfer of ownership can be agreed, after the divorce, by means of a contract of sale or division of joint property, depending on whether the animal is the spouses’ own or joint property (or, in cases of separation of property and civil partnership, depending on whether the animal belongs only to one of the members of the couple or is jointly owned by both).
In the absence of an agreement, the question of ownership can only be resolved in cases where the animal is jointly owned or co-owned by both can be dealt with judicially, through the division of property or a special action for the division of jointly owned property, depending on the case.
In the absence of any other applicable institute, the spouse/co-owner to whom the pet is not entrusted may be compensated for the economic value of the animal through unjust enrichment.
In short, despite the progress that has been made and the growing protection that has been given to companion animals, there are still a number of issues that it will be up to the legislator to regulate and that remain open, leaving the Courts, Civil Registry Offices and citizens somewhat confused as to the regime to apply and the classification to be given to their four-legged friends.
Nuno Cardoso Ribeiro
Catarina M. Caeiro
Beatriz Gomes Guimarães
[1] V. Dias, Cristina, O Divórcio e o Destino dos Animais de Companhia, in Julgar, no. 40, 2020, available here.
[2] Which reproduces the definition introduced by Article 1 of the European Convention for the Protection of Pet Animals.
[3] Except for animals whose keeping is prohibited in Portugal, as defined by Order no. 86/2018, of March 27.
Regulation no. 576/2013 of the European Parliament and of the Council of June 12, 2013, which restricts this concept to the species listed in Annex I of that law, may also be relevant, and the judge may rely on this element to support a more restricted notion of “companion animal”.
[4] In this sense, arguing that the fate of the pet can be entrusted to the non-owning spouse, as is the case with the allocation of the family home, see op. cit “O Divórcio…”).
[5] Although some doctrine theorizes that this situation was the result of a mere oversight by the legislator, who failed to update Article 1776(1) of the Civil Code when adding the agreement on the fate of pets to the list in Article 1775(1) of the same Code. However, the truth is that there is no legal basis to guide the registrar in assessing this agreement and, due to the nature of divorce proceedings, there is no factual basis to allow him to syndicate its content (see op. cit. Divorce…).
[6] A restriction that, although it does not derive from any legal precept, also seems to apply to divorces by mutual administrative consent, since the complementary agreements to the divorce are signed only by the spouses and have no effect on third parties.
[7] See op.cit. O Divórcio….
This solution, however, can lead to situations of enormous injustice; think, for example, of a case in which a pet, the property of only one of the spouses, is entrusted to the other member of the couple. This thesis would lead to the solution that only the owner of the animal would be responsible for its expenses, even in cases where he or she had no contact with it, a solution that cannot be accepted.
[8] See op.cit. O Divórcio….