Colombia 2023-multispecies family.pdf (570.22 KB)
This is the case of “Simona,” the dog in a family that went through a divorce in 2021. The husband, acting as the plaintiff, filed a lawsuit in the third Family Court to establish a visitation arrangement for their beloved companion, “Simona,” who lived with his ex-wife. The plaintiff argued that Simona was an integral part of their family and that both Simona and him had been emotionally impacted since the separation, as the defendant contended that visitations were distressing for Simona. The plaintiff further contended that Simona used to sleep with him and watch movies, but since she could no longer do so, Simona had become depressed and refused to eat. The family court dismissed the case, stating that it fell under the civil court’s jurisdiction.
The Superior Tribunal of Bogotá resolved the jurisdictional conflict between the third Family Court and the twenty-seventh Civil Circuit Court. In this case, the court addressed the following questions:
- Does the law recognize sentient beings as family members?
- Do family courts have the legal authority to establish visitation arrangements for companion animals after a divorce?
- Given the absence of regulations for multi-species families, should the court apply existing custody rules and related matters to children?
The court determined that for an animal to be recognized as part of a family, the family members must make emotional and financial decisions that go beyond meeting the animal’s basic needs. This recognition is evidenced when:
- Animals are given a name (which is considered an attribute of legal personhood).
- The needs of the animal are considered when making decisions that could disrupt their everyday life, such as moving, going on vacations, or going through divorces.
- The animal is acknowledged within family roles, such as being regarded as a child or a sibling.
The court further stated that the concept of family, which is constitutionally defined as the essential nucleus of society, has evolved to allow various conformations thanks to the principle of plurality. Following an analysis of ethological, sociological, and scientific evidence, the court concluded that animals can indeed be considered members of human families. This relationship merits protection as a social reality, wherein the government is obligated to guarantee the integral protection of the family. Furthermore, the court held that the law must evolve with society, and when the principle of legality allows, it has to adapt to contemporary needs.
In addressing questions two and three, the court recognized the absence of legal precedents within the country and referenced comparative law from Spain, where existing family laws apply to multi-species families, and Brazil, where a judge had authorized courts to establish visitation arrangements for animals following divorce. The court used these cases as further evidence of a societal change that other legal systems were already adapting to.
After its analysis, the court held that Simona was undeniably a member of her family. Therefore, the court with jurisdiction over the case should consider her role in the family, her well-being, and the well-being of the other family members. The court also concluded that the family judge was appropriate in this case as the plaintiff sought visitation arrangements for Simona, whom he regarded as his “daughter.” Therefore, no other judge possessed the authority to adjudicate on this matter.
The court went on to emphasize that even if they had not recognized the concept of a multi-species family and had based their decision on property principles, the family judge would still be the suitable authority. This was because Simona was acquired within the duration of the marital relationship, thus qualifying her as a community property asset. However, it was clearly elucidated that property law was not the primary argument for determining the appropriate authority in this case. Instead, it was the emotional bond between sentient beings that constituted a family that prevailed as the main argument.
Lastly, the court clarified that their intent was not to compare other animals with human beings but rather to recognize that, in today’s society, certain animals have become integral parts of families. In such instances, where a mutual bond exists, it is feasible to recognize certain duties and responsibilities that might result in the benefit of these animals. The court also highlighted that, it is necessary to overcome the potential false dilemma that relegates everything not considered a “person” to be a mere “thing.”