OLG Stuttgart: No right to contact with the dog after divorce

OLG Stuttgart, decision of 16 April 2019, file no. 18 UF 57/19

Note from Dr Magdalena Dittmann

In the context of family law disputes, the question often arises as to who is allowed to keep the family dog after separation and divorce.

In this regard, the Higher Regional Court (OLG) of Stuttgart ruled back in 2014 in the case of the Maltese dog B. for the period of separation that although animals are not property, the provisions applicable to property are to be applied in accordance with Section 90 a sentence 3 BGB. The allocation of a dog after separation of the spouses is therefore based on the rules for the division of household items pursuant to § 1361 a BGB. These only provide for a claim for surrender in the case of sole ownership of the specific item, as well as a distribution based on equity in the case of items that are co-owned by both spouses.

The current decision of 16 April 2019 concerning the mixed-breed dog L. concerns the period after the spouses' divorce became legally effective. The decision is based on the following facts:
Even before the marriage, the married couple acquire puppy L from the local animal welfare organisation. According to the handover contract, the puppy is handed over to the husband, who, according to the deed, becomes the owner with the handover of the animal and the associated papers and pays a protection fee for the animal.

After the separation of the spouses, L. remains in the husband's household in the former marital property with a large garden. Approximately nine months after the separation, the wife demands the return of L. and regular access rights in her application at first instance.

At the first hearing, the spouses agree on regular access rights for the wife, whereby the husband agrees to bring the dog to the wife and pick it up again. In view of this agreement, the family court orders the proceedings to be suspended.

After the parties' divorce has been finalised, the proceedings are reopened and another oral hearing is held.

The family court rejects the wife's applications for surrender and contact with L.
With her appeal, the wife continues to pursue her claim and requests that the decision of the court of first instance be amended to the effect that the dog be released to her immediately and that she be granted regular contact every weekend from Saturday morning at 9.00 a.m. to Sunday evening at 6.00 p.m., starting immediately, or alternatively that the dog be assigned to her.

The court of appeal also rejects the wife's applications. The Senate refers to its earlier case law in the case of the Maltese dog B. and clarifies that the allocation of a dog for the period after the divorce becomes final is also governed by the provision applicable to household items, i.e. § 1568 b Para. 1 BGB. Here, too, the family court can only assign a dog to a spouse in the case of household items that are jointly owned by the spouses. This requirement is not met, as the family court found that the dog L. is the sole property of the husband and the wife cannot prove her co-ownership. In the view of the Higher Regional Court, this assessment cannot be criticised.

The OLG Stuttgart also agrees with the view of the family court that there is no entitlement to the regulation of a right of access to the dog. The judges are convinced that a claim to access to the dog cannot be derived either from the provisions on the distribution of the household or from the provisions on the right of access to children.

The decision confirms the previous case law of other higher regional courts. As early as 2003, the Bamberg Higher Regional Court ruled (decision of 10 June 2003, 7 UF 103/03) that, according to the Household Contents Ordinance still in force at the time, only the allocation of objects, but not alternating use, was possible.

The Higher Regional Court of Hamm (decision of 25 November 2010) also ruled that there cannot be a right of access to the dog because such a claim cannot be derived from § 1361 a BGB.

For those seeking justice, it follows from this that a claim to the taking/return of the dog after separation and divorce only exists if the animal is the sole property or at least the joint property of the person claiming it. The (joint) ownership must be proven by the spouse claiming it. If the dog (or another animal) is co-owned by both spouses, the family court will decide on the basis of criteria relating to the welfare of the animal, taking other equitable considerations into account. Admittedly, the spouse who has already taken care of the animal in the past and is still able to do so has a better chance.

All in all, this is a very common situation and the legal regulation is unsatisfactory. In view of the existing legal loophole, it is strongly recommended that clients also include the issue of dealing with pets after separation and divorce in the marital agreement.