Vessey and Vessey

The matter before the Family Court of Australia concerned property proceedings initiated by the husband, who subsequently died. The wife, who had filed a response seeking dismissal of the application, also died before the proceedings were completed. The legal personal representatives of the wife sought to strike out the application, and the proponents for the will of the deceased husband did not oppose this.

The primary legal issue was whether the Court retained jurisdiction to make property orders under the *Family Law Act 1975* (Cth) when both parties to the marriage had died after the commencement of proceedings. Specifically, the Court had to consider the application and scope of section 79(8) of the Act, which allows for the continuation of property proceedings if one party dies before completion.

The Court reasoned that section 79(8) of the *Family Law Act* only contemplates the situation where one party to a marriage dies during property proceedings, not both. This interpretation was supported by Full Court authority in *Whitehouse & Whitehouse* and obiter dicta from the High Court in *Fisher & Fisher (No 2)*, which indicated that the phrase "either of the parties" in the context of section 79(8) refers to one of two parties. The Court also noted that the common law principle of *actio personalis moritur cum persona* (a personal action dies with the person) generally applies to personal actions, and absent a specific statutory exception, the personal cause of action to alter property interests between spouses dies with the second spouse. The Court found that the *Family Law Act* is silent on the scenario where both parties are deceased, and therefore, there was no express legislative provision preserving jurisdiction.

Consequently, the Court concluded that it had no jurisdiction to make any orders relating to the division of property in these circumstances. The application filed by the husband and the response filed by the wife were both struck out for want of jurisdiction.