There are always lots of neighbour issues when you live in an apartment.

The people upstairs come home when the pubs shut and then party till 3am every weekend. The nice young woman downstairs goes out to work, leaving her little dog to yap all day until she comes home. The young fellas on the floor below clearly have never learned what their stove is for, so every night is barbie night – preceded by the ritual burn-off of old fat, the smoke and stink from which pours into your apartment.

“Ah, well, that’s apartment living,” you tell yourself as you turn up the volume of your stereo to full “doof” to drown out the sound of the 12-year-old next door practising her clarinet for an hour every evening. By the way, your music is now keeping the shift-working nurses on the other side awake.

Is that really what we have to put up with when we live in apartments? There should be some give and take, but there are also limits

Most states have laws that would curb the weekend party animals regardless of where they lived. After midnight you can call the cops and your neighbours could be fined and even have their stereo gear impounded.

And there are by-laws in apartment blocks that limit excessively loud music all day, not just late at night. That includes little Miss Clarinet squeaking her way through the first few bars of Rhapsody In Blue.

The yappy dog is almost certainly breaching by-laws, not to mention local council ordinances. The barbie boys are creating a nuisance (although proving it may be tricky).

In fact, all of these scenarios involve some breach – some of them several – but who wants to be the apartment block grinch by complaining?

Do you really want to bump into the blokes from downstairs, now seriously undernourished because their landlord has ordered them to ditch the barbie? Are you prepared to wear the guilt of ruining a child’s musical ambitions (or, at least, her parents’)?

Taking The Middle Ground
However, there may be a compromise and the way to achieve that is by talking. The people above, below and next to you have no idea how loud the noise they are making sounds in your flat.

The blokes downstairs have no concept of where their barbie smoke goes and how bad it smells when it gets there (OK, they’re not that bright). The woman whose dog barks while she’s at work, doesn’t know … she’s at work, after all.

That said, talking isn’t always an option because no one likes to be confronted by an irritated neighbour at their front door. And in some blocks you can’t even get to other floors, anyway.

However, the anonymous note is a particularly irritating form of communication.

So a friendly chat before you complain has to be a better option. And perhaps the way to open the discussion is to offer a gift with a note attached.

A card saying: “Can we talk about your barbecue …?” attached to a box of chocolates or bottle of drinkable red will at least show you are not the negative namby-pamby nimby they might otherwise assume you are.

To be fair, there are people who live in apartments whose response will be “I can do what I want in my home and if you don’t like it, tough…!”

In which case, you have been given licence to unleash the “dogs of strata” war, in the form of by-law breach notices, complaints to the police and letters to landlords if they’re tenants. However these by-laws are difficult to implement and notices to offenders often lead back to mediation before they are heard in a court.

What can a body corporate do in these cases?

If a body corporate believes that an owner or occupier is breaching the by-laws, the body corporate can speak to the owner or occupier informally to try to fix the issue.

If that doesn’t work, the first formal step under the Body Corporate and Community Management Act 1997 is for the body corporate to give a by-law contravention notice to the person it believes is breaching the by-laws.

The decision to give a by-law contravention notice can be made by the committee, or the body corporate at a general meeting.

The body corporate usually cannot take action to enforce the by-laws until it has sent a by-law contravention notice.

The body corporate can give a ‘continuing contravention notice’ to an owner or occupier if it believes that they are breaching a by-law, and it is likely that this will continue.
(So that first contravention notice acts as an official warning for that owner to remedy the situation.)

An example of this type of breach is where an owner has made a change to the outside look of their lot without the approval required in the by-law or they have an animal that is constantly annoying other residents because of its noise.

The purpose of the notice is to ask the person to fix the problem within a certain time.
The notice must:

♦ say that the body corporate believes the person is breaching a by-law
♦ detail the by-law that the body corporate believes is being breached
♦ explain how the by-law is being breached
♦ set a time period for the person to fix the problem
♦ explain that if the person does not comply the body corporate may:
◊ start proceedings in the Magistrates Court
◊ make a conciliation application (mediate the matter).

The body corporate will need to fund any legal fight and costs can mount, so again the conciliation/mediation pathway is probably going to be the least costly. Of course, you do need the cooperation of a potentially stubborn neighbour in this case.
(BTW You may get costs awarded if you win but such an award may not cover all your legal costs.)

With thanks and acknowledgement to J Thomson for his contribution to this post.

Barking dogs, problem fences, loud noise and disgusting smells from neighbours?
Check out all the solutions, and your legal rights HERE.

Parting may be a sweet sorry for William Shakespeare but if neither of you are in Romeo and Juliet mode anymore, what happens to the gifts you received from each other?
What happens to the rings and the jewellery?
What happens to that lovely cash present Aunty Doris gave both or one of you last year? 
Dividing marital assets at the end of a relationship can be quite straightforward, but how do the courts look at gifts and divorce?

It is not unusual for parents to give their adult children significant gifts to help them get ahead in the property market, to go on a holiday or perhaps to assist with the raising of their children. This is all perfectly standard and legal, and many people are lucky enough to receive monetary gifts from their retired parents.

A problem arises when the adult child receiving a gift of money is in a relationship and this relationship later ends.

Does the other spouse have a right to the money that was given as a gift?

How can a person hold onto their gifts in a property settlement?

Will the gift be counted as part of the divisible pool of marital assets?

Property settlements do not follow any specific formula and many different points come into consideration.

Here are some of the most important elements to consider when looking at gifts in property settlements:

Assessing Contributions In A Property Settlement

A property settlement involves identifying a couple’s – whether de facto or married – assets, resources and liabilities and working out their total value. This typically involves looking at bank accounts, superannuation, property, mortgages, loans and sometimes other physical assets such as cars.

Both parties’ contributions to the marriage are evaluated. Contributions can be classified as direct and indirect, financial and non-financial.

Non-financial contributions include caring for children and maintaining the household. These are viewed as equally valuable as earning an income to provide for the relationship and family.

The court will divide the assets according to the contributions made by each party to the relationship.

However, adjustments may be necessary to account for a difference in the spouses’ current or future earning capacities.

One spouse, for example, may be the primary carer of the couple’s children and therefore have a limited capacity to work.

A person may also be less able to work due to illness, age or other reasons.

Any gift received by a party to the marriage will most likely to be counted as a financial contribution they made to the relationship, even the often given bloody wedding toaster.

If the gift was received before the start of the relationship, it will be categorised as an initial contribution.

As this increases the contributions the gift recipient made to the marriage or de facto relationship, their entitlements in the property settlement are likely to increase as well.

But be careful – there are other factors that affect the division of assets, and every case is different and is considered on its own.

Who Received The Gift?

Because a property settlement is about assessing contributions to the relationship, an important question is who was intended as the beneficiary of the gift.

If one spouse in the relationship receives a substantial monetary gift, it must be determined whether the gift was meant for their sole benefit or for the benefit of the other spouse as well.

Unless it is clear that the gift was meant for the equal benefit of both people in the relationship, the court will usually consider the gift as received by only one party. This will then affect the assessment of contributions as well as the adjustments made in the property settlement.

However, the question of who the gift belongs to holds less weight the longer the couple were married or in a relationship.

When dividing the property and assets following the breakdown of a shorter marriage or de facto relationship, such as one lasting for five years, it is more likely that any monetary gift received by either party will be kept out of the divisible asset pool, remaining the property of the gift recipient.

For longer relationships lasting at least ten or fifteen years, regarding gifts in property settlements, it is less relevant which side of the family the gift came from. Here, the court is more likely to treat both spouses as equally entitled to the money.

Determining who receives gifts in property settlements or whether a gift is divided equally depends on the assessment of contributions and each party’s earning capacity.

Protection of Gifts When Getting A Divorce

If you are the person giving a significant gift to your adult child, the possibility of their relationship ending in the future and their spouse claiming the money can be a legitimate cause for concern.

There are some strategies you can use to protect against this possibility, even if you do not think it very likely, and to keep the gift in your child’s possession in the event of a relationship breakdown.

One way to safeguard any gifts in property settlements is by recording your gift as a loan to make it technically repayable to yourself.

Loans are treated differently in property settlements from outright assets.

The court will not consider it as part of the divisible pool of marital assets as it is money that needs to be repaid.

If the court decides to have the loan repaid using the resources in the asset pool, following the finalisation of the divorce you are able to regift the money to your child.

The second way to ensure a gift remains belonging to its initial recipient is to draw up a binding financial agreement, or a prenuptial agreement.

Here, both spouses acknowledge the existence of the gift as belonging to one spouse, and acknowledge that the gift is not divisible with the other spouse in the event of relationship breakdown. A binding financial agreement is a legal document, witnessed and signed by an authorised person such as a Justice of the Peace.

The Engagement Ring

Parents are not the only people who may be concerned about the division of gifts in property settlements.

When a relationship breaks down, the spouses can have their mind on a very significant and symbolic gift made from one to the other, the engagement ring. No matter how ugly the ring, it is always held close at heart.

Australian couples now marry later than ever before, the engagement period lasts longer and over 75 per cent of couples move in together before getting married. Because the ring is generally a very expensive purchase, exactly who it belongs to – the gift recipient or the gift-giver – becomes a very important question.

Up until around the mid-20^th Century, family courts typically considered the ring as belonging to the person who gave it to the other spouse. The thinking was that the gift was given in contemplation of marriage, but the marriage never happened.

Today, the law varies on who owns the engagement ring, and the court’s decision often depends on factors including the value of the ring itself, who gave it to whom and whether the couple cohabited.

For many couples, the engagement ring can be a significant purchase.

Engagement rings are often expensive pieces of jewellery, but the value attributed to gifts in property settlements is based on their current second-hand purchase price rather than their value at the initial time of purchase.

Therefore, engagement rings may diminish in value when considered as part of the property settlement.

If the judge finds the engagement ring to not be of great value, and therefore not worth any kind of division or transfer of ownership, they will then usually allow the person who received the ring to keep it.

However, engagement rings with a significantly higher second-hand value, and therefore more likely to be causing conflict in the property settlement, will generally be counted as part of the asset pool to be divided between the spouses.

Considering the engagement ring as a gift given with the promise or expectation of marriage may affect a court’s decision on who retains ownership of it following a break-up.

The court’s decision may depend on who gave the ring and who left the relationship.

If the person who was given the ring refused to fulfil the conditions of the gift – marriage – then they may have to return the ring.

If the person who gave the ring refused to follow through with the promise of getting married, they may have no claim to the ring in the property settlement.

All this is based on the assumption that the couple in question cohabited as a de facto couple while they were engaged.

To be entitled to a de facto property settlement, which does not differ from the property settlement of a married couple when they divorce, a couple must be living together on a genuine domestic basis, not related to each other and not legally married.

The majority of Australian couples live together before marrying, making the ending of an engagement and the ending of a marriage a similar matter before the family court and raising the same issues regarding gifts in property settlements.

Don’t forget to check out all our great family law info HERE.
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[With acknowledgement and thanks to our “two sides” to the debate, Neil Fizzell and Jane Gordon]

There are two sides to every coin so let’s have a look at the arguments for whether there is a good moment in a child’s life when the least amount of damage is done to children by divorce or separation.
There is a “good” age for children’s parents to split if they must says Neil Fizzell – but Jane Gordon begs to differ.

A good time for divorce?
New research shows there is a “good” age for children’s parents to split, writes Neil Fizzell.

The phrase “staying together for the children” has always struck me as nonsense. Ever since, as a nine-year-old standing by a blue sofa, I begged my parents to get divorced – knowing that I was yet again going to be ignored – I have seen the tissue of lies that sticks to those words. They are as stupid as the phrase “it’s what they would have wanted” at a funeral.

What often holds an ill-matched set of parents together isn’t familial duty but financial interdependence, fear of being alone, illness, religion, conditioning, complacency or cowardice.

And the longer you, as a child, have to live in a house tarnished by disharmony, violence, discord or depression, the worse it will be for you; not just in that moment, but for your ongoing mental and relationship health.

So it came as no surprise to me to read new research, from University College London, which says that parental divorce is less harmful if it happens in early childhood.

According to the analysis of 6000 children born in the UK, those who were aged seven to 14 when their parents split are 16 per cent more likely to suffer emotional and behavioural problems than those whose parents stay together

Big news, you might say. Children from discordant homes fare worse than those whose parents are in a loving relationship.

But what is really interesting is that children who were between three and seven when their parents separated showed no differences to those whose parents were still together.

In short, if you’re going to break up, better to do it sooner, rather than wait until your children are older and more likely to form harmful patterns of behaviour themselves.

My parents – a couple so spectacularly ill-suited that even their best man, in his wedding speech, made a joke about their throwing crockery at each other – spent my childhood on and off. They finally separated for good three weeks before my A-levels

The timing was spectacularly bad and I told them that if they ever dared get back together, I would never speak to either of them again: a promise I was fully prepared to keep.

The effect of all this instability and absence and uncertainty was to give me a hardline and total disbelief in long-term lasting love for all of my teens and most of my 20s, until finally (with much help from partners and professionals) I started to see that emotional interdependence can actually be healthy, as well as dangerous.

Of course, having your parents separate is painful, sad, destabilising, scary and a logistical nightmare.

Anyone in the “broken home” gang will recall the nasty, slinking presence of a parent as they go around the house taking items from shelves and out of cupboards before leaving the family home

We will all remember the sobbing adults on the stairs; grim weekends of enforced “quality time” with an estranged parent; the terrible, silent dinners.

But all that is, I would argue, far better than spending your formative years under house arrest with two people who loathe each other.

Better to have a disorientating break while you’re young, than to suffer years in the company of two people enacting a corrosive war of insults, screaming, lying, gaslighting, sulking, infidelity or violence, centimetres from where you’re trying to do your homework.

The idea that you are somehow protecting your children by exposing them to the most poisonous elements of human behaviour is laughable

It is also a heinous injustice for children to be made aware, either explicitly or unconsciously, that their parents are staying in a state of loveless misery “for their sake”.

As though the burden of responsibility is yours; that if you weren’t around, these two people would have gone their merry ways years ago.

Luckily, my parents were so unmistakably incompatible that I never fell for this lie.

I knew, for as long as I can remember, that they were caught in a web of fear, laziness and lust that had nothing to do with me.

So when, during one of their separations, I was reassured by kindly adults – a teacher, a friend’s parent – that this wasn’t my fault, my answer was always: “I know. It’s theirs.”

The UCL study, published in the journal Social Science and Medicine, also reported that, on average, mothers experienced more mental health problems if they separated when children were older.

This is, in part, because the financial impact of divorce is more severe for a woman the later it happens in a marriage – that is, once your income, investments and belongings are as intertwined as a hedge full of bindweed.

What this says to me is that if we really wanted what was best for our children then we would all, men and women, strive for an end to the gender pay gap, regulation of private landlords, free childcare – all the things that keep many couples stuck in loveless marriages and many children, like me, living in homes damaged by them.

No good time for divorce?
No, there is no “good time”. Jane Gordon says that, if she had her chance again, she’d have worked at it.

The seven adults, one child and a dog gathered around a table in a London pub last Sunday probably looked like the perfect multi-generational family.

We were celebrating the birthday of my youngest daughter with a brunch that was, for me, as bitter as it was sweet.

Because, despite the illusion of unity we gave off to the people seated at neighbouring tables, we are in fact a broken family. Divided some 15 years ago by divorce.

The fact that we can all get together on special occasions and have fun is proof, I suppose, that we have achieved what some might call a “civilised” or “amicable” separation.

But the truth is that divorce is rarely civilised and almost never amicable.

The breaking-up of a family is always going to be painful and the idea that there is ever a “good” time to divorce is, I think, misleading.

It isn’t, of course, either possible or desirable to turn the clock back to change the events that caused my ex-husband and I to part.

But I do believe that if I had known then what I know now, I might have worked harder at holding our marriage together.

Our breakdown was not a sudden thing but a slow moving apart.

In the last few years, I was more absorbed in my children – then aged 21, 19 and nine – and my career, than I was in my relationship with my husband. While he, feeling increasingly isolated, switched off.

At the time, our problems seemed insurmountable – a future apart seemed preferable to a future together.

But had someone told me the truth about divorce – explained to me exactly how, in the years ahead, it would impact on our lives and the lives of our children – perhaps we might still be together.

Instead, we both bought into the idea that by divorcing we could achieve a “clean break” and a “fresh start”. Neither of which, in the event, worked out.

While we did move on to new relationships, they, too, broke down and today we are both single and, yes, sometimes lonely in a way that confirms my belief that divorce is never a good thing.

And it doesn’t mean you are going to be any happier than you would have been staying together.

I do worry that telling parents it’s better to divorce when the children are under seven will discourage them from working through the humps of unhappiness that any marriage goes through.

Divorce, I now believe, can only ever be seen as a favourable option to marriage in the most desperate of circumstances.

No marriage is ever perfect, but most are probably good enough.

But, at the time of my break-up, I didn’t understand this great truth.

It wasn’t until my parents died, a few years later, that I realised the true impact my divorce would have.

Their deaths – within six months of each other, after 60 years of strong, but far from perfect, marriage – made me realise what, in deciding to separate, I had denied my own three children.

They might not have lost their parents when we divorced, but they lost their family home and the continuity of life that makes the journey from child to adult so much more comforting and secure.

The fact that I have not given my own children the security and unity that I took for granted, will always be a source of shame and regret.

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