Animals will soon be ‘sentient beings’ instead of ‘things’ in the civil code
Raquel López:
RECENTLY the head of the recently created directorate general of animal rights, Sergio García Torres stated that we will soon have the long awaited reform of the civil code and other civil regulations, in which animals will become legally considered as sentient beings rather than as things.
In the new wording of the civil code we will see how the references to animals in the aforementioned legal text will change from ‘things’ to ‘sensitive beings or sentient beings’. In addition, it will also regulate that in the processes of separation of couples, divorces, etc, with or without children, ‘the welfare of the animal’ will finally be taken into account when deciding on its fate, regardless of whose name the animal’s microchip is in, etc.
In this post my dear colleague and student Esther Hernández, who studied at the animal protection institute (IPA www.institutodeproteccionanimal.com) and DeAnimals (www.deanimals.com), has analysed the content that will possibly be included in the new wording of the civil code, taking into account a reform project that was approved in 2017.
Esther Hernández Cruz:
I have made a comparison between the articles contained in the Civil Code of 1889 and the draft reform of the civil code, approved in parliament in 2017, which will successfully culminate with the reform of that law this year, if all goes well.
These are the future reforms envisaged in the imminent civil code.
Article 90, which deals with the regulatory agreement for marital separation and divorce, introduces new legislation regarding ‘the fate of pets, should there be any, taking into account the interest of the family members and the welfare of the animal, (and) enabling provisions to be made for the time that they enjoy it to be divided (between them)’.
Along the same lines, Article 94 bis is created, which establishes the following: The judicial authority shall entrust pet animals to one or both spouses, taking into account the interest of the members of the family and the welfare of the animal.
Moreover, Article 103 includes a new measure: To determine, taking into account the interest of the members of the family and the welfare of the animal, whether the pet animals are entrusted to one or both spouses, the manner in which the spouse to whom they have not been entrusted may keep them in his or her company, as well as the appropriate precautionary measures to preserve the right of each spouse.
These specifications did not appear in the Civil Code of 1889, which is an important step forward for those families who have pets and find themselves in situations of separation, divorce or the need to establish a visiting regime.
With regard to Article 333, which previously was limited to defining the things that are or may be subject to appropriation, referring to possessions and real estate, important additions have been made:
Art. 333.1. Animals are living beings endowed with sentience. The legal regime of property is applicable to them only to the extent that it is compatible with their nature and with the provisions intended for their protection.
Art. 333.2. The owner of an animal may enjoy and make use of it respecting its quality of being endowed with sentience, ensuring its welfare in accordance with the characteristics of each species. The right of use does not cover mistreatment. The right to make use of an animal does not include the right to abandon or sacrifice it, except in those cases established in the legal or regulatory rules.
Art. 333.3. Expenses incurred for the treatment of an animal injured by a third party are recoverable by its owner up to the amount that has been paid and even if they have been greater than the value of the animal.
In summary, it is indisputable that pets have been gaining some consideration in the legal field. Although this reform has not yet become a reality, it clearly shows the growing concern to guarantee their welfare and their right to a dignified life. Although there is still a long way to go, great strides are being made that are marking out the path to follow and leading us towards a model of society that is more humane and respectful of the living beings that travel this long road with us.
Raquel López:
Undoubtedly, the future reform of the civil code will mark a turning point in terms of the legal classification of animals, especially pets, because from the moment this reform takes place, judges and administrations will always have to take into consideration the welfare of animals, of pets, as the sentient beings that they are.