Document ID: chunk:federal_register_of_legislation:C2004A00736:clause:2_90j
Version: federal_register_of_legislation:C2004A00736
Segment Type: clause
Provision Reference: sch 2 cl 90J
Character Range: 60477–62645

90J  Termination of financial agreement

 (1) The parties to a financial agreement may terminate the agreement only by:
 (a) including a provision to that effect in another financial agreement as mentioned in subsection 90B(4), 90C(4) or 90D(4); or
 (b) making a written agreement (a termination agreement) to that effect.

 (2) A termination agreement is binding on the parties if, and only if:
 (a) the agreement is signed by both parties to the agreement; and
 (b) the agreement contains, in relation to each party to the agreement, a statement to the effect that the party to whom the statement relates has been provided, before the agreement was signed by him or her, as certified in an annexure to the agreement, with independent legal advice from a legal practitioner as to the following matters:
 (i) the effect of the agreement on the rights of that party;
 (ii) whether or not, at the time when the advice was provided, it was to the advantage, financially or otherwise, of that party to make the agreement;
 (iii) whether or not, at that time, it was prudent for that party to make the agreement;
 (iv) whether or not, at that time and in the light of such circumstances as were, at that time, reasonably foreseeable, the provisions of the agreement were fair and reasonable; and
 (c) the annexure to the agreement contains a certificate signed by the person providing the independent legal advice stating that the advice was provided; and
 (d) the agreement has not been set aside by a court; and
 (e) after the agreement is signed, the original agreement is given to one of the parties and a copy is given to the other.

 (3) A court may, on an application by a person who was a party to the financial agreement that has been terminated, 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.

Note: For the manner in which the contents of a financial agreement may be proved, see section 48 of the Evidence Act 1995.