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FAMILY LAW ACT 1975 - SECT 90UM

Circumstances in which court may set aside a financial agreement or termination agreement

             (1)  A court may make an order setting aside, for the purposes of this Act, a Part VIIIAB financial agreement or a Part VIIIAB termination agreement if, and only if, the court is satisfied that:

                     (a)  the agreement was obtained by fraud (including non-disclosure of a material matter); or

                     (b)  a party to the agreement entered into the agreement:

                              (i)  for the purpose, or for purposes that included the purpose, of defrauding or defeating a creditor or creditors of the party; or

                             (ii)  with reckless disregard of the interests of a creditor or creditors of the party; or

                     (c)  a party (the agreement party ) to the agreement entered into the agreement:

                              (i)  for the purpose, or for purposes that included the purpose, of defrauding another person who is a party to a de facto relationship (the other de facto relationship ) with a spouse party; or

                             (ii)  for the purpose, or for purposes that included the purpose, of defeating the interests of that other person in relation to any possible or pending application for an order under section 90SM, or a declaration under section 90SL, in relation to the other de facto relationship; or

                            (iii)  with reckless disregard of those interests of that other person; or

                     (d)  a party (the agreement party ) to the agreement entered into the agreement:

                              (i)  for the purpose, or for purposes that included the purpose, of defrauding another person who is a party to a marriage with a spouse party; or

                             (ii)  for the purpose, or for purposes that included the purpose, of defeating the interests of that other person in relation to any possible or pending application for an order under section 79, or a declaration under section 78, in relation to the marriage (or void marriage); or

                            (iii)  with reckless disregard of those interests of that other person; or

                     (e)  the agreement is void, voidable or unenforceable; or

                      (f)  in the circumstances that have arisen since the agreement was made it is impracticable for the agreement or a part of the agreement to be carried out; or

                     (g)  since the making of the agreement, a material change in circumstances has occurred (being circumstances relating to the care, welfare and development of a child of the de facto relationship) and, as a result of the change, the child or, if the applicant has caring responsibility for the child (as defined in subsection (4)), a party to the agreement will suffer hardship if the court does not set the agreement aside; or

                     (h)  in respect of the making of a Part VIIIAB financial agreement--a party to the agreement engaged in conduct that was, in all the circumstances, unconscionable; or

                      (i)  a payment flag is operating under Part VIIIB on a superannuation interest covered by the agreement and there is no reasonable likelihood that the operation of the flag will be terminated by a flag lifting agreement under that Part; or

                      (j)  the agreement covers at least one superannuation interest that is an unsplittable interest for the purposes of Part VIIIB; or

                     (k)  if the agreement is a Part VIIIAB financial agreement covered by section 90UE--subsection (5) applies.

Note:          For child of a de facto relationship , see section 90RB.

             (2)  For the purposes of paragraph (1)(b), creditor , in relation to a party to the agreement, includes a person who could reasonably have been foreseen by the party as being reasonably likely to become a creditor of the party.

             (3)  For the purposes of the application of subparagraph (1)(c)(ii) to a Part VIIIAB financial agreement covered by section 90UE:

                     (a)  the reference in that subparagraph to an order under section 90SM is taken to include a reference to an order (however described) under a corresponding provision (if any) of the non-referring State de facto financial law concerned; and

                     (b)  the reference in that subparagraph to a declaration under section 90SL is taken to include a reference to a declaration (however described) under a corresponding provision (if any) of the non-referring State de facto financial law concerned.

             (4)  For the purposes of paragraph (1)(g), a person has caring responsibility for a child if:

                     (a)  the person is a parent of the child with whom the child lives; or

                     (b)  a parenting order provides that:

                              (i)  the child is to live with the person; or

                             (ii)  the person has parental responsibility for the child.

             (5)  This subsection applies if:

                     (a)  at least one of the spouse parties to the agreement was not provided, before signing the agreement, with independent legal advice from a legal practitioner about the effect of the agreement on the rights of that party and about the advantages and disadvantages to that party of making the agreement; or

                     (b)  if this advice was provided to at least one of the spouse parties to the agreement--that party was not provided with a signed statement by the legal practitioner stating that this advice was given to that party;

and it would be unjust and inequitable, having regard to the eligible agreed matters (within the meaning of section 90UE) for the agreement, if the court does not set the agreement aside.

             (6)  A court may, on an application by a person who was a party to the Part VIIIAB financial agreement that has been set aside, or by any other interested person, make such order or orders (including an order for the transfer of property) as it considers just and equitable for the purpose of preserving or adjusting the rights of persons who were parties to that financial agreement and any other interested persons.

             (7)  An order under subsection (1) or (6) may, after the death of a party to the proceedings in which the order was made, be enforced on behalf of, or against, as the case may be, the estate of the deceased party.

             (8)  If a party to proceedings under this section dies before the proceedings are completed:

                     (a)  the proceedings may be continued by or against, as the case may be, the legal personal representative of the deceased party and the applicable Rules of Court may make provision in relation to the substitution of the legal personal representative as a party to the proceedings; and

                     (b)  if the court is of the opinion:

                              (i)  that it would have exercised its powers under this section if the deceased party had not died; and

                             (ii)  that it is still appropriate to exercise those powers;

                            the court may make any order that it could have made under subsection (1) or (6); and

                     (c)  an order under paragraph (b) may be enforced on behalf of, or against, as the case may be, the estate of the deceased party.

             (9)  The court must not make an order under this section if the order would:

                     (a)  result in the acquisition of property from a person otherwise than on just terms; and

                     (b)  be invalid because of paragraph 51(xxxi) of the Constitution.

For this purpose, acquisition of property and just terms have the same meanings as in paragraph 51(xxxi) of the Constitution.



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