Smallman v Smallman: CA 1972

An order was sought under the 1882 Act to decide the shares in which the family home was to be held. An overall agreement had been negotiated in correspondence between solicitors that W should have a half share in the proceeds of sale of the property and that H would pay the children’s school fees and maintenance but this was conditional upon W providing evidence on which H could divorce her and on ‘the approval of the court.’ W gave the confession but H then sought to resile from the agreement claiming that it was not binding until it had been approved by the court. W proceeded under section 17 and the Registrar held there was a binding agreement but that before the proceeds could be distributed the court must approve it.
Held: Lord Denning MR said: ‘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 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. Orr L.J. has drawn my attention to a useful analogy. Many contracts for the sale of goods are made subject to an export or import licence being obtained. Such a condition does not mean that there is no contract at all. It is the duty of the seller, or the buyer, as the case may be, to take reasonable steps to obtain a licence. If he applies for a licence and gets it, the contract operates. If he takes all reasonable steps to obtain it, and it is refused, he is released from his obligations. If he fails to apply for it or to do what is reasonable to obtain it, he is in breach and liable to damages.’

Lord Denning MR
[1972] Fam 25
Married Women’s Property Act 1882 17
England and Wales
Cited by:
CitedSoulsbury v Soulsbury CA 10-Oct-2007
The claimant was the first wife of the deceased. She said that the deceased had promised her a substantial cash sum in his will in return for not pursuing him for arrears of maintenance. The will made no such provision, and she sought payment from . .
CitedGold Group Properties Ltd v BDW Trading Ltd TCC 3-Mar-2010
The parties had contracted for the construction of an estate of houses and flats to be followed by the interim purchase by the defendants. The defendants argued that the slump in land prices frustrated the contract and that they should not be called . .
CitedWarwick (Formerly Yarwood) v Trustee In Bankruptcy of Clive Graham Yarwood ChD 13-Sep-2010
The trustee sought to have set aside as an unlawful preference, the payment of 75% of the proceeds of sale of the former matrimonial home to the bankrupt’s wife, saying that the payment had been made after the presentation of the petition. The . .

Lists of cited by and citing cases may be incomplete.

Family, Contract

Updated: 18 December 2021; Ref: scu.259832