Whitehouse and Whitehouse

In *Whitehouse and Whitehouse*, heard by Mushin J, the proceedings concerned an application made by the wife (or her legal personal representatives) regarding property interests. The central dispute revolved around the validity of an "Accrued Application" made after the husband's death, and whether the court possessed the necessary jurisdiction to determine the relief sought under that application.

The primary legal issue before the court was whether the "Accrued Application," made after the death of one of the parties to the marriage, was a valid matrimonial cause that could be brought before the court. This required the court to consider the scope of its jurisdiction under section 78 of the relevant Act, which empowers the court to make declarations regarding property interests between parties to a marriage. The court had to determine if section 78 could be invoked by the legal personal representatives of a deceased party and if the relief sought in the Accrued Application was a matrimonial cause that could only be pursued under the Act.

Mushin J reasoned that section 78 of the Act, which deals with declarations of interests in property, applies to "parties to a marriage." The court found that at the time the Accrued Application was made, one party had died, but this did not preclude the application of section 78, drawing analogy from the principles in *Fisher's case*. The court held that the wife's legal personal representatives could have amended their application to seek a declaration under section 78, as the available relief and evidence would have been identical to that which could be sought in a State Court. Consequently, the court concluded that the Accrued Application, not having been brought under the Act, was void *ab initio* for want of jurisdiction.

Accordingly, Mushin J ordered the dismissal of paragraph 2 of the wife’s Amended Application for Final Orders filed 15 June 2007, and all other applications. Liberty was reserved to both parties to apply for any consequent orders, including costs, and the proceedings were removed from the list of cases awaiting hearing. The court noted that it was open to either party to commence proceedings in the Supreme Court of Victoria seeking relief under State legislation.