After a separation, both partners often wish to maintain their relationship with their pets.

Non-married couples can be assigned the animal as joint property for temporary use. As co-owners, both partners are entitled to reasonable "use" of the pet. This results in a situation that is similar to the so-called alternating model in the care of joint children.

The situation is different for married couples. The special provisions of family law stipulate that pets must be allocated to one spouse for their sole use. Therefore, a kind of alternating model is generally only possible by private agreement between the separated/divorced couple and cannot be ordered by the court.

A North German family court has now found a way to achieve the goal of the alternating model in time for Christmas within the framework of a temporary injunction.

The decision was based on a case in which a married couple living separately initially looked after their dog on a shared basis until one of the spouses claimed the dog for themselves alone.

The local court upheld the primary applicability of § 1361a BGB and also provisionally allocated the dog to one spouse for their sole use. However, the decision leads to a de facto alternating model:

According to the court's reasoning, the decisive factor for the allocation was that, in the case of an allocation to the chosen spouse, it was to be assumed that the dog would not be completely taken away from the losing party. The prevailing spouse had made it clear that, in the event that the dog was allocated to him, he was prepared to make an agreement with his spouse who was living apart to the effect that the latter could continue to see the dog regularly. In contrast, the losing spouse had made it very clear that he would exclude the other party from any further contact with the animal in future. As a result, this behaviour by the losing spouse meant that the dog would completely lose a caregiver, whereas the dog would retain both spouses as caregivers if it was assigned to the winning spouse.

In fact, the former alternating model should be continued.

The decision shows a possible line of argument for future cases: It is not the alternating model itself that is ordered, but the spouse who wants to make this possible has a better chance of being allocated the animal. However, it is not foreseeable what will happen if the spouse does not make use of his or her good intentions and then retains the animal - in principle in accordance with his or her rights.

Paula Morschhäuser

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