By: Vitor Antony Ferrari, Ivan Kubala

A law is much more than a legal device created to regulate a certain conduct. It is a cultural trait of a society, since the legal asset protected and the reason for the rule being created say a lot about the universe in which the legislator is inserted. Changes in laws, therefore, demonstrate the change in thinking in this universe. 

This has recently been seen in the relationship between people and their pets. Recently, people have come to see their pets as members of the family, and no longer as mere livestock. Due to this closer bond, legal disputes over shared custody of animals acquired during the relationship have become common. 

However, society changes before the law, and the legislator has not had time to address the issue and discuss whether current regulations regarding animals still fulfill their legal function. Due to this mismatch between social demands and legal production, litigants are commonly basing their arguments on Family Law to resolve disputes over legal assets that are currently protected by Property Law. In some cases, one of the parties seeks to force the other to be present in the animal's life and help pay for it, demanding payment of alimony for the pet, something unimaginable from a technical point of view, since the right to property guarantees the possibility of disposing of the thing, and the owner is not obliged to maintain possession against his or her will; and alimony is linked to personality rights, exclusive to people, whether natural or legal.   

It is important to emphasize that Family Law, as it currently stands, cannot be used in cases of shared custody of PETs, since animals, even though they are sentient and have bonds with human beings, are not subjects of law, and therefore do not have real or personality rights.  

It should be clear that case law is not consolidated, and there are divergent decisions regarding whether or not these disputes can be resolved in Family Courts. There are judges who believe they have jurisdiction to judge these issues, others only judge these cases if there are also elements pertaining to Family Law (such as shared custody of children and adolescents), and finally, there are those who declare themselves incompetent to judge the dispute. There is also the understanding that this matter should be dealt with in Civil Courts, since when two people have a pet, what actually occurs is a joint ownership: each has a fair share, and therefore has the right to keep the animal and share it, if they wish. 

     It should be noted that the issue addressed above is a real problem arising from a separation. Therefore, it can, and should, be handled by professionals who are qualified and experienced in resolving this type of dispute. 

     It should be noted that the issue addressed above is a real problem arising from a separation. Therefore, it can, and should, be handled by professionals who are qualified and experienced in resolving this type of dispute. 

With the collaboration of Luis Felipe Meira Marques Simão