Bailey v Bailey

In *Bailey v Bailey*, the High Court of Australia considered a dispute between the parties concerning the interpretation and application of a separation agreement. The case came before the Full Court of the High Court.

The central legal issue before the Court was whether a certain clause within the separation agreement, which dealt with the division of property and financial entitlements, was void as being contrary to public policy. Specifically, the Court had to determine if the clause, which purported to prevent either party from seeking further maintenance or support from the other, was legally enforceable.

The Court's reasoning focused on the public policy considerations surrounding agreements that seek to oust the jurisdiction of the courts to award maintenance. Their Honours held that while parties are generally free to contract, agreements that attempt to completely preclude a party from seeking statutory maintenance are void as contrary to public policy. The Court distinguished between agreements that regulate the *amount* or *period* of maintenance, which may be valid, and those that seek to extinguish the *right* to seek maintenance altogether. The underlying principle is that the court retains an inherent jurisdiction to ensure that parties are not left without adequate means of support, particularly where circumstances change.

The High Court found that the impugned clause was void and of no effect. Consequently, the Court made orders allowing the wife to pursue her claim for maintenance notwithstanding the terms of the separation agreement.