Document ID: chunk:federal_register_of_legislation:C2024C00859:clause:1_90k:p1
Version: federal_register_of_legislation:C2024C00859
Segment Type: clause
Provision Reference: sch 1 cl 90K (pt 1/2)
Character Range: 594071–596741

90K  Circumstances in which court may set aside a financial agreement or termination agreement
 (1) A court may make an order setting aside a financial agreement or a 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
 (aa) 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
 (ab) 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 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 de facto relationship; or
 (iii) with reckless disregard of those interests of that other person; or
 (b) the agreement is void, voidable or unenforceable; or
 (c) 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
 (d) 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 marriage) and, as a result of the change, the child or, if the applicant has caring responsibility for the child (as defined in subsection (2)), a party to the agreement will suffer hardship if the court does not set the agreement aside; or
 (e) in respect of the making of a financial agreement—a party to the agreement engaged in conduct that was, in all the circumstances, unconscionable; or
 (f) 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
 (g) the agreement covers at least one superannuation interest that is an unsplittable interest for the purposes of Part VIIIB.
 (1A) For the purposes of paragraph (1)(aa), 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.
 (2) For the purposes of paragraph (1)(d), a person has caring responsibility for