Commonwealth Consolidated Acts Commonwealth Consolidated Acts(1) At any time when a payment flag is operating on a superannuation interest, the parties to the de facto relationship may make an agreement (a flag lifting agreement ) that either:
(a) provides that the flag is to cease operating without any payment split; or
(b) specifies an amount, method or percentage in accordance with subsection 90YN(1).
(2) If the flag lifting agreement provides for a payment split, the parties to the de facto relationship may at any time make an agreement (a termination agreement ) that terminates the flag lifting agreement.
(3) A flag lifting agreement or termination agreement has no effect unless it complies with the following requirements:
(a) the agreement must be signed by both parties to the de facto relationship;
(b) for each party, the agreement must contain a statement that the party has been provided with independent legal advice from a legal practitioner as to the legal effect of the agreement;
(c) a certificate must be attached to the agreement, signed by the person who provided the legal advice and stating that the advice was provided;
(d) after the agreement is signed by the parties, each party must be provided with a copy of the agreement.
(4) The Family Court of Western Australia or the Magistrates Court of Western Australia may make an order setting aside a flag lifting agreement or 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 party to the agreement; 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 90YX of this Act or section 205ZG of the Family Court Act 1997 (WA), or a declaration under section 90SL of this Act or section 205ZA of the Family Court Act 1997 (WA), 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 party to the agreement; 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 (6)), a party to the agreement will suffer hardship if the court does not set the agreement aside; or
(h) a party to the agreement engaged in conduct that was, in all the circumstances, unconscionable; or
(i) the agreement covers at least one superannuation interest that is an unsplittable interest for the purposes of this Part.
Note: If a court makes an order setting aside a flag lifting agreement, the court may then make an order under section 90YX in relation to the superannuation interest.
(5) For the purposes of paragraph (4)(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.
(6) For the purposes of paragraph (4)(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.
(7) An order setting aside a flag lifting agreement also operates to set aside the related superannuation agreement.
(8) If the Family Court of Western Australia, or the Magistrates Court of Western Australia, makes an order under the Family Court Act 1997 (WA) setting aside a Western Australian financial agreement that has a related flag lifting agreement, the court must also make an order setting aside the flag lifting agreement. Subsection (4) of this section does not apply to the order setting aside the flag lifting agreement.
Note: If a court makes an order setting aside a flag lifting agreement, the court may then make an order under section 90YX in relation to the superannuation interest.