Dispute over the family cat – who may keep a common animal after a divorce?

What had happened?

In the proceedings for the post-marital division of the property acquired during the marriage, both parties disputed the allocation of the cat they kept together. The wife had previously taken the animal with her when she moved out of the marital home without the husband’s knowledge and consent.

The husband essentially justified his request by claiming that he had a stronger emotional bond with the cat. In addition, the woman had taken the cat out of its familiar environment – which included another cat – which was questionable under animal welfare law and showed that the woman was not capable of caring for the animal.

The woman, on the other hand, argued against assigning the animal to the man, saying that she had cared for the cat almost alone and had formed a reciprocal, close emotional bond with him. The man, she argued, had shown little interest in the cat and had rarely taken on grooming duties. In addition, the woman argued that there had been an agreement before she moved out, according to which she was to keep the cat and the man was to keep the other cat.

The Court of First Instance followed the man’s argumentation and awarded him the cat, as he had had the stronger emotional relationship with the animal. However, the Court of Appeal overturned this decision on the grounds that it was also necessary to clarify to which spouse the cat itself had had the stronger emotional bond and who was better suited to care for it.

The husband appealed this decision to the Supreme Court (Oberster Gerichtshof, OGH).

How did the Supreme Court decide?

The Supreme Court corrected the decision of the second instance and essentially stated that pets – notwithstanding the provision of Section 285a of the Austrian Civil Code (Allgemeines Bürgerliches Gesetzbuch, ABGB), according to which animals are not things, are protected by special laws, and the provisions applicable to things are applicable to animals only insofar as there is no deviating regulation – are to be treated as a thing in the division of matrimonial property. Therefore, "family animals" brought in during the marriage are subject to division pursuant to §§ 81 et seq. of the Marriage Act (Ehegesetz, EheG)

Since in the concrete case not the asset value of the animal was not in the foreground for the spouses, but rather the emotional attachment to the animal, the division of the cat for reasons of equity is primarily to be based on the stronger emotional relationship to it. This principle would only be deviated from if an allocation to the spouse in question would be incompatible with provisions of animal protection law. In contrast, the stronger emotional bond of the animal to one of the two spouses is not decisive for the allocation. In particular, it is also irrelevant whether the cat developed an emotional relationship with a second cat kept by the wife during the time with the wife, since this does not concern a decisive circumstance under animal protection law.

The appeal was therefore admissible and also justified.

(Decision 1 Ob 254/22t of 27.01.2023)

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