Paul and Paul

In the matter of *Paul and Paul*, O'Reilly J of the Family Court of Australia considered an application by the wife seeking a case stated. The dispute arose from the husband's application for a just and equitable division of property under section 79 of the *Family Law Act 1975* (Cth), which the wife sought to have dismissed. The wife's basis for dismissal was a pre-nuptial agreement entered into by the parties in a foreign country prior to their marriage, which she contended estopped the husband from pursuing property proceedings in Australia.

The central legal issue before the court was whether a pre-nuptial agreement made in a foreign jurisdiction, which was binding according to the laws of that jurisdiction, should be given the same weight as a judgment of a foreign court that finally determines property rights. This question was complicated by the wife's initial application for a case stated that expressly referred to Part VIIIA of the *Family Law Act 1975* (Cth), concerning financial agreements made under that Part. It became common ground that Part VIIIA had no application to agreements made otherwise than pursuant to its specific requirements, rendering the initial question as posed "embarrassing on its face."

O'Reilly J noted that the wife's application for a case stated was dismissed. The court's reasoning, as evidenced by the orders made, indicated that the procedural path chosen by the wife was not appropriate for resolving the underlying legal question. The court directed that the matter be listed for a case conference before a Registrar, with counsel to confer and agree on directions. The husband's costs associated with the wife's dismissed application were reserved to the trial judge.