What is the test for an agreement where the parties have reached an agreement subject to the approval of the court?
Ontario, Canada
The following excerpt is from Downing v. Reynolds, 2014 ONSC 2520 (CanLII):
In Smallman v. Smallman, [1971] 3 All ER 717, Lord Denning provided the following guidance at p.720: In my opinion, if the parties have reached an agreement on all essential matters, then the clause “subject to the approval of the court” does not mean that there is no agreement at all. There is an agreement, but the operation of it is suspended until the court approves it. It is the duty of one party or the other to bring the agreement before the court for approval. If the court approves, it is binding on the parties. If the court does not approve, it is not binding. But, pending the application to the court, it remains a binding agreement which neither party can disavow.
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