Maite had just separated after five years of marriage. Three years earlier, together with her then husband, Cristóbal, they adopted Benito, a mixed-breed dog who quickly became another member of the family.
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They have no children or shared assets, but they do have Benito who was present in almost every important moment of their relationship: family weekends, vacations, moving houses, and even the toughest days. Both love him equally and while they lived together, they shared his care and expenses.
When it came time to end the relationship, everything seemed relatively simple to resolve. However, a question arose for which neither had a clear answer: who would keep Benito?
A few years ago, that question would have seemed unusual. Today it happens with increasing frequency. Pets have ceased to occupy a secondary place within homes. However, Chilean law still faces this reality with tools that were designed for other types of conflicts.
From the perspective of the Civil Code, animals continue to be part of the property regime. Article 567 places them among movable things and calls them “semovientes” (living things), because they can move by themselves. As a result, in a conflict over who should keep a pet, the rules about ownership, possession, and dominion still play a central role.
And this is precisely where a paradox appears: the conflict arises from the breakup of a family, but legally it can still end up being resolved as a dispute over a thing.
A few years ago, an ex-couple went to court to decide who would keep Igor and Bambú, the two dogs that had been part of their shared life. Since Chilean legislation does not contemplate this type of conflict, the person who wanted to continue sharing with them had to file a lawsuit in a civil court, using a legal figure designed for shared property between two people.
At first, the 8th Civil Court of Santiago (Case No. C-1533-2021) accepted the claim. The ruling highlighted one of the great contradictions of our law: although the law still considers animals as movable property — that is, legally as “things” that can belong to more than one person — the court recognized that they are not inanimate objects and that there is a real emotional bond between them and their caretakers.
With that criterion, it ruled that Igor and Bambú would live three months with each member of the ex-couple.
However, that decision was not final. In December 2024, the Santiago Court of Appeals revoked it, not because it rejected the possibility of shared custody, but because it considered that it had not been proven that both were co-owners of the dogs.
Beyond whether the decision was right or wrong from a legal point of view, the case clearly shows where the problem lies.
To be able to judicially discuss the possibility of continuing to see and care for two animals that had been part of a shared family life, it was first necessary to prove that there was a community of property over them. The decisive question ended up being whether both were legally owners.
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In summary, there is no action in our law specifically designed to resolve what happens to a pet after a couple separates. There is no regulation that allows a judge to specifically weigh who exercised daily care, what bond the animal maintains with each person, what their routines are, or who is in better conditions to ensure its well-being.
Law No. 21,020 on Responsible Ownership of Pets and Companion Animals was an important advance. It established that whoever accepts the care of an animal assumes concrete obligations: to provide food, shelter, good treatment, and veterinary care, to avoid abandonment, and to protect its well-being throughout its life.
But the law did not address an increasingly common situation: what happens when those who assumed those cares together stop living together?
In some way, our legal system is then left halfway. It recognizes that animals require care, that they can suffer, and that there is a special responsibility regarding them, but when the relationship in which that animal was embedded breaks down, we mainly return to the traditional categories of owner, possessor, and common thing.
And it is no coincidence that in recent years various initiatives have been presented precisely to regulate what happens to pets after a separation. The most recent bill (Bill No. 17,783-07) introduced in 2025 and still in its first constitutional process, proposes creating a shared care regime for companion animals after the end of a marriage or civil union agreement, and even in certain separation situations. The proposal contemplates considering the bond that each person has built with the animal and its well-being, even when one of them is not legally its owner.
The existence of these projects shows that the problem is already established. What still does not exist is a definitive legal response.
Other countries have advanced in that direction. Spain, for example, modified its legislation to recognize animals as living beings endowed with sensitivity and established special rules for marital crises. In a separation, a court can decide who will keep the animal, how its care will be distributed, and how the bond with both members of the couple can be maintained, especially considering its well-being.
This is not about equating pets with children nor automatically transferring to animals the institutions created to protect children and adolescents. They are different categories and require different responses. But it also does not seem reasonable to ignore that family forms and the bonds we build within them have changed and this is something family law should address.
Today there are families with children, without children, blended, single-parent, and also households where a dog or cat occupies a central place in daily life and in the shared project. When those families separate, those bonds do not simply disappear because legally the animal remains movable property.
Perhaps that is why, when Maite came to ask us what she could do, her question was never who was legally Benito’s owner. Her question was much simpler and, at the same time, much more difficult for our law: after having loved and cared for him together for years, who was going to continue sharing their life with him?
