Four out of ten Austrians have a pet. Some of these pet owners are married and some of them get divorced at some point. Many marriages that are contracted in Austria, are permanent. The approximately 40 percent of all marriages that do not “last” are usually divorced amicably (sometimes after years of negotiations). If no agreement is reached, a court decides. But, what about divorce animals?
In order to divorce by mutual consent in Austria, the spouses must agree on the main consequences of the divorce. For example, there must be agreement on how the joint assets or debts are to be divided, what the situation is with regard to post-marital maintenance and child support, and what the situation is with regard to custody and contact rights for the joint children. So far so clear. But what if the family also has other members, such as dogs, cats, canaries or tadpoles? What happens to the pets in the case of a divorce, if the spouses cannot agree on which person the divorce pets should stay with?
Where to put divorce animals?
Many people have a very close bond with their pets and naturally regard them as members of the family. Austrian civil law states that animals are not things. However, as far as there are no special regulations for them, animals are treated like things. In the case of divorce, things that have been contributed, inherited or donated by a third party are already excluded by law from the division in the case of divorce. Also excluded from the division are things that serve the personal use of one spouse alone or his or her professional practice. This means that if one party has already “brought” an animal into the marriage, if one inherits the grandmother’s family dog or if the animal is given to one of the spouses by a third party, the situation is clear and the question of “dividing” the animal does not arise even in the case of a divorce. Nor will a policewoman have to share her drug-sniffing dog, which accompanies her every day at work, or an enthusiastic competition rider the horse with which she spends her free time without her spouse.
However, if an animal is purchased with marital money, it counts as part of the so-called marital assets in the event of a divorce. Marital property must be divided in the event of divorce. Now, it will satisfy very few people to divide the beloved family dog into two equal halves. In the best case, the spouses can agree on who can offer “the better place” for the animal with a view to the animal’s welfare. If a consensual solution fails, the competent court must also divide pets, since according to case law they are part of the marital property, according to the principles of equity. This means that a court decides who is to be the owner of the animal in the future. In doing so, the court may also take into account who has the stronger bond with the pet and who has the better resources to ensure that the animal is kept in a manner appropriate to the species. However, there is no legal basis for the court to take animal welfare into account. Nor can animal welfare be equated with the welfare of the child.
Visitation rights?
In practice, the question arises again and again whether there are visitation rights for animals remaining with the ex-partner. Austrian law only recognizes custody and contact rights for children, but not for pets. Case law is also reserved in this regard. In addition, the court has to take into account that the spheres of life of the divorcees should be as separate as possible in the future. The possibilities of legally enforcing contact or visitation rights in the case of a formerly shared pet are therefore endless.
One possibility to make provisions in advance would therefore to stipulate a marriage contract before even deciding to divorce, who should keep the animal in case of separation. In this way, married couples could also take divorce pets welfare into account.
Even if there is no legal possibility to obtain a judicial visitation right for a (former) pet, it is of course still possible to agree on such a right by mutual consent. In this case, it is also advisable to set clear times and regulations in order to avoid further conflicts in the best case.
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