Prioritising the welfare of dogs

A curious question from everyday life that a German court had to deal with, negotiate and finally decide was the dispute between former partners who were not married, had no children, but were co-owners of a Labrador. After the separation, both ex-partners wanted to keep their beloved Fido (the dog's name in Germany par excellence) exclusively with them, each for their own reasons.

The Frankenthal Regional Court (decision of 12 May 2023 - 2 S 149/22), as the court of second instance, ruled that the dog should stay with both of them, two weeks with one and two weeks with the other. When ordering the alternating model for Fido, the court applied the rules on the use of joint property in accordance with Section 745 (2) BGB. The decision seems to have satisfied everyone, the two ex-partners, but probably also Fido himself, who had no say in the proceedings (sic!), but to whom the court paid due attention. The court based its decision, among other things, on the principle of the ‘best interests of the dog’ in maintaining an unchanged relationship with both dog owners, with whom he should feel connected, and applied by analogy the principle that is protected in proceedings concerning the custody of minor children.

The decision was published in the legal journals and commented on by lawyers who took the opportunity to deal with the subject of animal law in an extremely interesting way on the one hand and to make a real comparison between the different decisions of other courts in similar cases or between practically identical situations but subject to different legal regulations on the other. Indeed, if two spouses were to fight over access to a dog, the question would have to be judged on the basis of a different legal system than in the case analysed, namely divorce law (division of household effects), which is reserved for spouses in a family crisis.

Furthermore, irrespective of the decision on joint access to Fido, which both owners are entitled to in equal shares, the underlying question remains unresolved: who owns the dog if one of the co-owners wishes to exercise their right to demand the cancellation of the community of property? Last but not least, questions may also arise in connection with the maintenance and veterinary care of the dog.

For lawyers interested in this area of law, but also for the curious and inquisitive who want to find new areas and insights into the application of existing rules, we recommend reading the article by the author Felix Aiwanger, which was published in the legal journal FamRZ 2023, 1773, not least because the author cites several decisions from the field of international animal protection.

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