Separation and divorce - who actually gets to keep the dog?

When spouses separate, one party usually moves out. The other spouse must hand over the household items that they have acquired themselves in accordance with Section 1361a (1) BGB. If items have been purchased jointly, they must be distributed according to the principles of fairness. The question often arises: who actually gets the dog? This is an emotional issue for many, so it often ends up in court.

The Marburg District Court last dealt with this question on 03.11.2023 (decision of 03.11.2023 - 74 F 809/23 WH).

The couple had acquired the family dog Bruno, a Bernese mountain dog/Rottweiler mix, during their marriage. After the separation, a conflict arose because the wife took Bruno with her when she moved out. The husband then applied for the dog to be temporarily assigned to him during the separation period and for Bruno to be returned to him.
The local court ruled that the dog Bruno was to be assigned to the husband for the duration of the separation period. The proposal rejected by the wife for regular contact, in which Bruno would mainly live with the husband and visit the wife twice a year for two weeks, was not accepted. The judge emphasized that, although Bruno is not considered an object pursuant to § 90a BGB, the provisions of § 1361a BGB regarding the division of household objects apply accordingly. Furthermore, it was emphasized that the decision was made solely on the basis of the animal's welfare, whereby the spouses' mutual accusations were not taken into account. The decisive factor was the animal's need to return to its familiar surroundings, especially as it was known that a dog-proof garden in which Bruno could feel at ease significantly improved his quality of life.

The local court ordered the order to take immediate effect in accordance with Section 209 (2) sentence 2 FamFG. Although this procedure is unusual for decisions on household effects, the situation here was more comparable to the surrender of a child: Delaying the return would not serve the interests of the dog and would only increase the wife's pain of separation.