How to determine who owns the pet when Ningbo divorces
Striving for a house, a child, and a cat and dog who get along day and night-this is no longer an isolated phenomenon in Ningbo's marriage and family counseling. However, there is a gap between the answer given by the law and the emotional expectations of the parties: China's current law does not set up independent personal rights and interests for companion animals, pets are still treated as "things" in the referee, and the path of division of the common property of husband and wife is taken, not the path of child rearing. The question the court really wants to answer is therefore not "who loves it more", but "to whom it belongs in law, which party is more reasonable, and whether the other party should be compensated at a discount".
Why 1. pets are treated as property rather than family members
article 1062 of the the People's Republic of China Civil Code defines the wages, bonuses, income from production and operation, inherited or donated property obtained during the marriage as the joint property of husband and wife. Article 1087 stipulates that the joint property in the event of divorce shall be dealt with by agreement between the two parties. If the agreement fails, the people's court shall make a judgment according to the specific circumstances of the property and in accordance with the principle of taking care of the rights and interests of the children, the woman and the fault party. These two articles form the basis of the entire claim for pet division-note that they all discuss "property".
1. There is no "pet custody" as a basis for the claim.
The parties often write in the complaint "request to order the pet to be raised by the plaintiff", the court will generally explain and request to change to the property division request. The reason is very direct: the natural person is the main body of the nurturing relationship, and the animal belongs to the object in the civil law and cannot be the object of being nurtured. It is not uncommon in practice to make a mistake in writing a claim, which is less than required to be changed, and more than that, it is not supported because of the improper basis of the claim.
2. Three consequences of the characterization of "things"
first, pets can be awarded to one party alone, and the other party will receive discount compensation, instead of "rotation" arrangements like child support. Second, the market value of pets becomes an assessable object, and blood certificates, purchase certificates and medical records may be used to support the value. Third, pets produced during the marriage (e. g. pups from breeding) are, in principle, also the joint property of the spouses.
2. first characterization: common property or personal property.
Rights must be confirmed before division. If the characterization is wrong, the subsequent compensation calculations will all be biased.
1. Pre-marital acquisition, co-breeding after marriage
pets purchased or acquired by a party before marriage shall be the personal property of the party before marriage and shall not be automatically converted into common property as a result of joint feeding and joint expenditure of medical expenses after marriage. Reasonable expenses incurred by the other party for the pet after marriage can usually only be considered together as part of the common property that has been spent in the overall division, and the pet's own share of ownership cannot be claimed on this basis.
2. Purchased or acquired after marriage.
Pets purchased after marriage with the joint property of the husband and wife belong to the joint property. Pets acquired by one party after marriage, if the giver does not explicitly indicate that only one party will be given, are also included in the common property. Adoption, rescue stray animals and acquired, usually with reference to marriage to obtain processing, but need to pay attention to the adoption agreement on the registration of the subject.
3. Mixed situations and evidence
A common mixed situation is when one party buys before marriage and both parties jointly invest a large amount of medical or training expenses after marriage. At this time, the ownership of the pet still belongs to the original right holder, but the other party may claim the corresponding interest in the actual input of the common property. In either case, the purchase voucher, transfer record, pet hospital medical record, dog immunization certificate and the subject name on the registration certificate are all key evidence.
The four types of facts that the court values when the 3. is returned to one party.
In cases where both parties claim to continue to keep pets and the pets are common property, the court will not draw lots, but will make a comprehensive judgment based on the following four types of facts.
1. Source of acquisition and proof of contribution
who paid the money, who signed the contract with the seller, and who registered the dog registration certificate and immunization certificate are the most direct first-level facts. The party with clear credentials is usually in a favorable position in the vesting dispute.
2. Practical commitment to day-to-day care
who completes the feeding, walking, nursing and medical treatment, who is the registered person and payer of the pet hospital, and whose account the purchase records of pet supplies are concentrated in will be used as evidence of the "actual caregiver. The weight is particularly high on who actually owns the pet during separation and whether the care is continuous.
3. Feeding conditions and life stability
whether the residence is allowed to raise pets, the living area and outdoor conditions, whether the working hours have the possibility of care, and whether there are other family members to assist, all point to "whether the stable feeding state can be continued after returning". This is highly similar to the principle of "conducive to growth" in the rearing of minors in the judgment logic.
4. Abuse, abandonment or mishandling in contention
A party who privately resells, gives away, hides a pet during the litigation, or is abused or left alone for a long time, will not only be adversely evaluated in terms of attribution, but may also be underscored in the overall division of property by hiding or transferring common property.
How to Calculate 4. Discount Compensation
after the pet is awarded to one party, the other party may in principle receive a discount compensation equal to its share. The base is usually calculated by reference to the purchase price and adjusted for factors such as variety, age, health status, sterilization, and breeding value. The market value of most common companion animals is limited, and the court prefers to calculate the purchase price by half after deducting depreciation. It is worth reminding that the feeding and medical expenses during the feeding period are common living expenses and are generally no longer included in the compensation base separately.
5. visitation terms can be written but difficult to enforce.
The divorce agreement stipulates that "the other party can visit the pet twice a month" is not an invalid clause. If both parties voluntarily perform it, the law will not interfere. However, since the pet is a thing rather than a person, the agreement is not the object of enforcement, and when one party refuses to perform, the other party is usually unable to apply to the court to force it to deliver a visit, but can only be held liable for breach of contract under the agreement (if a breach of contract is also agreed). Therefore, rather than entangling visiting arrangements, it is better to write down the attribution, compensation amount, payment time and delivery point directly in the agreement.
6. case proof
according to the similar judgment rules reflected in the public judgment documents in Zhejiang Province, there are three relatively stable clues to deal with divorce property division cases involving pet ownership: first, the court generally does not support the expression of "pet custody" and includes it in the category of common property division; second, when both parties advocate to continue breeding, the proportion of the party who actually continues to occupy and take care of after separation is significantly higher. Third, if the judgment is attributed to one party, the other party will generally receive a discount compensation of about half of the purchase price after deducting reasonable depreciation, rather than adding it separately according to the "emotional value" claimed by the parties. The caliber of similar disputes in Ningbo is basically the same as the above clues.
7. Risk Alert
- the claim is written as "custody" rather than property division, which is easy to be required to change or even affect the progress of the trial, and the basis of the claim should be calibrated before prosecution.
- When separated, leaving the pet to the other party to "keep it first" is tantamount to handing over the actual possession of the fact, and the difficulty of claiming ownership has increased significantly.
- Selling, giving away or hiding pets without permission may be regarded as hiding or transferring the common property of husband and wife, which is less divided or not divided in the overall division.
- Only write "pet belongs to the woman" in the agreement, but not the delivery time and compensation amount. It is easy to have disputes again in the performance stage. It is suggested that the liability for breach of contract should be clarified together.
- If a dog fails to register and is not immunized according to regulations, it may also face the risk of administrative punishment in cities such as Ningbo that implement dog registration management. Such facts will also affect the court's evaluation of breeding conditions.
8. FAQ
can pets fight for custody like children in divorce?
Can't. China's current law does not establish pet custody, pets in civil law belong to the object. At the time of divorce, a request shall be made in the name of the division of the joint property of the husband and wife, which shall be decided by the court in accordance with Article 1087 of the Civil Code, and the other party shall be compensated at a discount.
Pets bought before marriage have always been taken care of by the other party after marriage. Who will they belong to when they divorce?
In principle, the party who still buys before marriage belongs to his personal property and does not change his ownership because he is in the care of the other party after marriage. However, the large expenses incurred by the other party for pets after marriage are expenses of common property and can be considered together in the division of the overall property.
After the pet is awarded to the other party, can I still request regular visits?
It can be agreed in the agreement, but the agreement is not enforceable. If the other party does not cooperate, it is generally impossible to apply for compulsory court visits, and can only claim liability based on the breach clause in the agreement. It is safer to agree on a clear penalty in the agreement at the same time.
What is the general discount compensation for pets?
Usually based on the purchase price, combined with the variety, age, health status and whether there is a breeding value after adjustment of the calculation. Feeding and medical expenses during the feeding period are common living expenses and are generally not included in the compensation base.
Practical Experience of 9. Lawyers
it is not uncommon to fight for cats and dogs in divorce counseling, but there is a gap between the answer given by the law and the emotional expectations of the parties: pets are still treated as "things" in the referee, taking the path of dividing the common property of husband and wife, not the path of raising children. Therefore, what the court really wants to answer is not "who loves it more", but who it belongs to in law, which party is more reasonable, and whether the other party should get discount compensation. First of all, the mentality and ideas are transferred to this track, and then the following actions are meaningful.
Let's start with characterization: whether it is common property or personal property. Look at the time of purchase, who contributed, whether it was purchased after marriage or whether one party received a gift, and judge whether it can enter the scope of division. Then prepare the facts that reflect "who is more suitable to continue breeding": daily feeding records, medical and vaccine vouchers, bills of foster care and expenses, living conditions, and whether there is a stable period of care. When one party is awarded, the other party usually receives a corresponding discount compensation, so the actual value of the pet and the cost invested are also worth sorting out, and both negotiation and judgment are useful.
The visitation clause can be written, but it is difficult to force it. Don't put all the expectations of maintaining the relationship on it: the other party won't let it, and the measures that can be taken in practice are limited. When negotiating, the emotional value of a pet is often higher than its economic value, and this is an available flexible card-one party gives up on the house or compensation in exchange for the pet's own, which is a common landing point. However, the delivery time, method and supporting matters (such as changes in chip or registration information and subsequent vaccine arrangements) should be clearly written, otherwise new disputes will easily occur at the handover step.