Document ID: chunk:federal_register_of_legislation:C2008A00115:clause:1_90um:p2
Version: federal_register_of_legislation:C2008A00115
Segment Type: clause
Provision Reference: sch 1 cl 90UM (pt 2/3)
Character Range: 119047–121751

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 following:
 (i) the effect of the agreement on the rights of that party;
 (ii) the advantages and disadvantages, at the time that the advice was provided, to the party of making the agreement; or
 (b) if the advice was provided to one of the spouse parties—a signed statement by the legal practitioner stating that the advice was provided was neither:
 (i) included in, or attached to, the agreement; or
 (ii) given to the party;
and it would be unjust and inequitable, having regard to the eligible agreed matters (within