More agreements between exes about pets, but little protection.
Pet custody is increasingly becoming a part of separation and divorce agreements , with visitation days and times being regulated as is the case with children .
However, when there's no agreement and the matter ends up in court, the judge cannot rule, since our legal system lacks a provision expressly regulating visitation rights for pets. In these cases, a separate judgment, involving possessory guardianship, must be conducted to decide whether the established bond is worthy of protection.
These considerations are also valid when the ones separating are the partners of a de facto couple: even in this case, if the agreements reached by the exes regarding the custody of the pets fall through, the only viable option is that of possessory guardianship .
Thus, the Court of Rovigo, with an order dated May 15, rejected the precautionary appeal for an urgent injunction (pursuant to Article 700 of the Code of Civil Procedure) filed by a separated husband who complained that his wife was preventing him from seeing the Labrador retriever, which he had acquired during the marriage but was registered solely in her name. The terms of separation had provided for the husband's visitation rights, and this was initially respected. However, following his wife's hospitalization, visits were interrupted until the wife transferred ownership of the dog to her mother.
The Court first clarified that under our legal system, pets, despite being sentient beings, are considered "movable property" in proceedings aimed at determining the existence of visitation rights. For the judge, the fact that the man complained of severe stress from the loss of the animal, comparable to bereavement, does not establish the existence of imminent harm, such as to justify the use of the emergency procedure. Furthermore, the judge wrote, "our legal system lacks a reference rule regulating the custody of pets and visitation rights in the event of separation or divorce."
It is therefore necessary to distinguish between two different cases, depending on whether the procedure is consensual or judicial .
In the first case, most of the lower courts have applied the rules established for minor children , ruling on custody and the recognition of visitation rights.
However, in the case of judicial separation or divorce, this possibility has been completely excluded.
Therefore, only the spouses' agreement can determine the fate of pets; but if they fail to reach an agreement, the judge has no right to decide on assignment or visitation rights.
However, the protection currently recognized by case law for those who wish to avoid losing their bond with their pet upon the end of a relationship is possessory protection, which can be pursued when it can be demonstrated that the animal was fond of both exes. However, it will be necessary to contact a judge other than the one handling the separation or divorce proceedings and initiate a separate proceeding.
Among the factors that influence pet custody are the length of the relationship, whether the couple lives together, and the care provided during the relationship . The presence of minor children is also a factor: denying them the opportunity to continue to interact with the pet could cause serious harm that must be taken into consideration.
The possessory procedure is also suitable for former de facto partners. Thus, the Pescara Court, in an order dated February 15, declared inadmissible the appeal filed by a woman who had requested emergency guardianship to secure visitation rights for the dog she had cared for during her seven-year relationship with her partner, the last of which was during their cohabitation. The dog was registered solely in the man's name, who, after a period of shared custody, had decided not to allow his ex-partner to see it anymore.
The judge, while acknowledging the emotional bond with the woman, did not consider emergency guardianship viable. However, he did clarify that the conditions for exercising possessory guardianship were met.
The basis for such an application must be proof of a "significant relationship" between the person seeking visitation rights and the pet. This was clarified by the Court of Cassation in 2023, with Order 8459, which addressed a woman's appeal against her ex-boyfriend, to whom she had been engaged for only four months. The woman had requested that her co-ownership of the dog purchased during the relationship and its custody be established. However, she was unable to demonstrate that, despite the brevity of the relationship with her ex, she had created a stable emotional bond with the animal, which was owned by her partner.
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