Bill No. 19 Marriage And Divorce Bill 2009 (2) An agreement may be set aside by the court for lack of full disclosure of assets by a party to the agreement. (3) The court may set aside or modify an agreement on the ground of unconscionability where it is satisfied that the purpose and effect of the agreement is contrary to conscience or that the agreement exploits the unequal bargaining position of a spouse. 123. Capacity to acquire separate property (1) A spouse in any form of marriage recognized under this Act shall have the capacity to acquire his or her own separate property during the subsistence of the marriage. (2) Separate property shall not be taken into account for the purpose of the distribution of matrimonial property under this Act, unless there is an agreement to the contrary. (3) Subsection (2) does not apply where the spouse proves that he or she made a contribution to the acquisition or maintenance of the separate property. (4) Separate property includes— (a) independently acquired property and the proceeds and profits from the that property; (b) property acquired before marriage or property acquired by bequest, devise, inheritance or gift from a person other than the spouse; (c) property that was acquired by gift or inheritance from a third party after the date of the marriage; (d) income from property referred to in paragraph (c) where the giver or testator has expressly stated that it is to be excluded from the spouse’s matrimonial property; (e) damages for personal injuries, nervous shock, mental distress or loss of guidance, care and companionship, or the part of a settlement that represents those damages; 52