Pre-Nuptial Agreement

Pre-nuptial agreements are formal written agreements between people who are expecting to get married, setting out who will own what when they are married, and, usually, attempting to set out what will happen if the couple gets divorced or separates. Post-nuptial agreements are formal agreements about the same range of things, but entered into after marriage. Pre-civil partnership and post-civil partnership agreements are similar to pre-nuptial and post-nuptial agreements, but are between people who are either about to, or already have, entered into a civil partnership.

In many countries outside the UK, pre-nuptial agreements in particular are a normal feature of marriage, and are regularly enforced as binding agreements by foreign courts. However, in England and Wales, while the court may take pre-nuptial agreements into account when deciding how to divide assets when marriages end, such agreements are not binding on the courts, and are relatively uncommon (although a growing number of people with significant assets are showing interest in them). Recently, in a case called MacLeod v MacLeod, the most senior judges confirmed that while pre-nuptial agreements may be taken into consideration by the English court, they are not enforceable agreements under English law; on the other hand these judges distinguished post-nuptial agreements, even those dealing with what will happen if the couple divorces or separates, and concluded that post-nuptial settlements will, in many cases, be perfectly valid and enforceable agreements. However, since MacLeod, in a case called Radmacher (formerly Granatino) v Granatino, the Court of Appeal has gone somewhat further, suggesting that judges should treat pre-nuptial settlements as the decisive element in some ancillary relief cases, and even calling for legislation to introduce a formal presumption that both pre-nuptial and post-nuptial settlements be ‘dispositive’ of any claim for ancillary relief, that is a presumption that any agreement between the parties should form the basis of any award made by the court.

It is becoming more common for pre-nuptial agreements to come before the English courts, particularly in international cases, and some clear principles have emerged. In Granatino, the Court of Appeal set out the current state of the law, but criticised that law in a number of important respects, and strongly urged judges to give pre-nuptial contracts very great weight, even decisive weight, in certain circumstances. In relation to post-nuptial settlements, MacLeod sets out the current state of the law very clearly. Although there are no separate authorities in relation to pre- or post-civil partnership agreements, the court should apply the same principles applicable to nuptial settlements to cases involving civil partners rather than spouses.

It seems very likely that pre-nuptial agreements, and even more so post-nuptial agreements, will become more important in England over the next few years than they have been in the past. The Law Commission has announced that it will be examining the circumstances in which courts should uphold pre-nuptial contracts, with the aim of drawing up a draft parliamentary Bill by 2012, but as yet the Commission has produced no suggestions. The Court of Appeal has now given the Commission a strong indication that pre-nuptial agreements should be given the same weight as post-nuptial agreements, and that there should be a formal system giving weight to both.

The court’s discretion to make financial orders

Taking pre-nuptial agreements into account when making financial orders

Pre-nuptial agreements and forum

The best pre-nuptial agreements

Post-nuptial agreements and financial orders

Creating valid and enforceable post-nuptial settlements

The court’s jurisdiction to vary post-nuptial settlements

Entering into an agreement freely and knowingly

The court’s discretion to make financial orders

The first and most significant principle is that no agreement between a husband and wife, whether signed before or after the marriage ceremony, can oust the jurisdiction of the court to make orders concerning the couple’s financial arrangements. Provided the English court has jurisdiction under ordinary principles, it is always possible, no matter what agreement has been reached by the parties, for a husband or wife to apply to the English court for financial relief. Any clause in any sort of agreement which purports to prevent either the husband or the wife from applying to the court for financial relief on divorce or separation is not only unenforceable, it is void. That does not mean that the rest of the agreement is necessarily unenforceable, merely that the court retains the jurisdiction to hear argument concerning the case.

It is still true to say that a pre-nuptial agreement is not binding on the English court, but is merely one of the factors to be taken into account. A pre-nuptial agreement does not at present interfere at all with the court’s discretion to divide the parties’ assets on divorce, and the court may decide for itself how much weight to attach to a pre-nuptial agreement as one of the circumstances of the case. The Court of Appeal has, however, suggested that, at least in cases involving foreign parties freely entering into pre-nuptial contracts that are presumed by both parties to be binding, very great weight should be given to such agreements. Indeed the general emphasis of the judgment in Granatino is on the importance of any such agreement between adults, freely and ‘knowingly’ entered into, that is without any undue pressure on them to agree, and with a clear appreciation of the possible consequences of the agreement.

Since the judgment in MacLeod it seems that a valid post-nuptial agreement does limit the court’s jurisdiction, in that the court must make an order giving effect to any such agreement unless it is satisfied that there is jurisdiction to vary the agreement.

However, in respect of both pre-nuptial and post-nuptial agreements, it should be borne in mind that not all such agreements will be regarded as ‘valid’. Any contract is voidable if it breaches proper safeguards or is vitiated under general principles of the law of contract, and any agreement between husband and wife will be subject to the review of a judge exercising his duty under the Matrimonial Causes Act 1973, s.25, if either party asserts that the contract is manifestly unfair.

Taking pre-nuptial agreements into account when making financial orders

It seems reasonably clear that when an English court is considering what financial arrangements should be made on divorce, a pre-nuptial agreement remains merely one of the circumstances of the case, unless and until new legislation is introduced. In other words a pre-nuptial settlement will be taken into account only if the judge considers it relevant to the decision as to what is a fair settlement. Having said this, the trend over the past 10 years is for English judges to attach increasing weight to pre-nuptial settlements by English judges, and the Court of Appeal decision in Granatino means that in future even greater importance is likely to be given to pre-nuptial settlements.

In 2001, in a case called M v M (Pre-nuptial Agreement), a pre-nuptial agreement was taken into account in the exercise of the court’s discretion as ‘one of the more relevant circumstances’. The judge said that it did not matter whether the pre-nuptial agreement was treated as a circumstance of the case, or as an example of conduct which it would be inequitable to disregard. In this particular case the court considered that it was relevant that the husband would not have married the wife without the pre-nuptial agreement, but that it was also relevant that the wife had been pregnant when the agreement was signed, and had felt an urgent need to be married. In the judge’s view it would have been as unjust to the husband to ignore the existence of the agreement and its terms as it would have been to the wife to hold her strictly to its terms. Although the judge went on to award the wife considerably more than she was entitled to under the terms of the agreement, he said that he bore the agreement in mind, ‘as tending to guide the court to a more modest award than might have been made without it’.

In 2002, in a case called K v K (Ancillary Relief: Pre-nuptial Agreement), the judge went further, and applied the capital part of the pre-nuptial agreement, awarding, as set out in the agreement, £100,000 plus 10% per annum. The agreement specified ‘reasonable financial provision for the child’, which the judge interpreted as £1.2 million for a house for the wife and child, to be held in trust until the child finished full time education, and then returned to the husband, plus agreed periodical payments for the child of £15,000 a year. However, in addition to the wife’s entitlement under the pre-nuptial agreement, the judge ordered the husband to pay the wife £15,000 a year during the period of the trust, because he considered it unjust to refuse the wife maintenance when she was making an ongoing contribution by caring for the child of the marriage. The judge did not consider that the wife had been under any pressure to sign the agreement, although she had been 5 months pregnant when she signed and had told the husband that she wanted a termination if they did not get married, to which the husband was utterly opposed.

In 2007, in a case called Crossley v Crossley, the pre-nuptial agreement was considered to be so compelling a factor in the particular circumstances of the case that the Court of Appeal confirmed that, to save time, rather than going through all the usual stages of the ancillary relief process it was entitled to require that the wife explain to the court why the terms of the agreement should not be implemented. Acknowledging explicitly that the prenuptial agreement was likely to be a factor of ‘magnetic importance’ in the case, and not just one of the peripheral factors, the Court of Appeal warned, however, that this was an exceptional case.

In 2008, in Radmacher (formerly Granatino) v Granatino, the judge at first instance considered that a pre-nuptial agreement was just one of the factors to be taken into account. She found that the pre-nuptial contract in question, between a French husband and a German wife, had been defective under English law, although valid under French and German law. This was because the husband had not received independent legal advice before signing the agreement, there had been no disclosure by the wife, there had been no negotiations, and no provision had been made in the contract for children. Two children had been born during the marriage, and the contract deprived the husband of all claims against the wife, even in a situation of need, which the judge considered was manifestly unfair. Having decided, for these reasons, not to give effect to the terms of the pre-nuptial agreement, the judge did, nonetheless, give the husband less than she might otherwise have done, to reflect the fact that he had agreed to the terms of a contract giving him nothing, knowing that it would have been binding in Germany and in France.

However, in 2009, the Court of Appeal allowed the wife’s appeal, on the basis that, although the judge had correctly stated that pre-nuptial settlements were not enforceable per se, and were merely a factor to be taken into account, she should not have found that the pre-nuptial contract in the case was defective. The Court of Appeal particularly criticised the judge for failing to take sufficient account of the fact that in both France and Germany such contracts were standard practice, the fact that the husband had been a very able and well-established international banker when he signed the contract; the fact that the husband had clearly had the opportunity to seek independent advice during the development of the contract, although he had chosen not to do so; the fact that the husband had chosen not to negotiate, and the fact that the husband had been well aware that the wife came from a very rich family, albeit that no disclosure had been made. The Court of Appeal considered that in these circumstances the pre-nuptial contract should have been given decisive weight and indicated that in future cases, broadly in line with this case, judges should give due weight to the marital property regime into which parties had freely and ‘knowingly’ entered. The Court was concerned about the potential injustice within Europe if such contracts were not given due weight by the English courts, especially giving the jurisdictional rules introduced by Brussels II (Revised), which often give English courts jurisdiction over families from other European countries who happen to be living in England when they divorce. The Court of Appeal advised judges to avoid such injustice by making full use of the very great discretion given to judges in financial relief cases by s 25 of the Matrimonial Causes Act 1973. In order to give proper weight to the pre-nuptial contract in this case, the Court of Appeal limited the husband’s award to his role as father, and therefore to the years during which he would be exercising parental responsibility: the housing fund of £2.5 million was not to be his absolutely, but was to be held only during the parenting years, and the ‘needs based’ income fund was to be capitalised to cover the husband’s needs only until the youngest child was 22.

Even if the terms of pre-nuptial agreements concerning division of assets on divorce are not binding on the court, such agreements may be of great assistance when it comes to identifying what assets each spouse brought with them into the marriage. English courts are likely to distinguish between property brought into the marriage by one or other spouse, and property acquired by either of them during the marriage only in big money cases, and the distinction is much less likely to be made, even in big money cases, if the marriage has lasted a long time. However, one of the arguments against the making of such a distinction, that it is or can be very difficult to work out exactly what each person brought into the marriage, may be partially solved by pre-nuptial agreements that set out clearly and comprehensively what each person owns going into the marriage.

Pre-nuptial agreements and forum

In general pre-nuptial agreements have been given greater weight when the English court is deciding which country’s court is best placed to hear an application for financial provision on divorce (the question of forum) than when the English court is itself hearing an application for financial provision on divorce.

In a number of cases the English court has refused to consider an application for financial relief made by someone living in England, on the basis that the parties to the marriage, both citizens of a foreign country, had entered into a pre-nuptial agreement in a foreign country, which, among other things, specified that the agreement should be construed by the courts of that foreign country. In particular, in 2007 in a case called Ella v Ella, the Court of Appeal upheld a judge’s decision that a case involving a couple with dual British and Israeli nationality should be heard in Israel rather than England, even though the couple’s main residence during the marriage had been in England. The pre-nuptial agreement, which provided that the law of Israel should apply to any questions affecting property, that separation of property should apply, and that the provisions of the agreement would apply in any place or at any time, was considered to be a major factor. The effect of the agreement in these circumstances was that Israel was the more appropriate forum.

However, because of Brussels II (Revised), which has introduced changes to the way in which the question of forum is to be decided by the member states of the European Union (except Denmark), the choice of jurisdiction in pre-nuptial agreements is unlikely to be a significant factor in most cases involving the member states. This was one of the concerns raised by the Court of Appeal in Granatino, and one of the considerations that led to the Court giving decisive weight to an agreement which, in many respects, did not satisfy what had previously been regarded as the basic standards for a pre-nuptial agreement. The Court felt that there was the potential for injustice if a relatively short period of residence in England could completely undermine a married couple’s clear agreement, which would be binding on them in their country or countries of origin, as to how property should be held during the marriage, and shared on separation or divorce.

The best pre-nuptial agreements

English lawyers are drafting a growing number of pre-nuptial agreements, particularly for clients with international interests who may wish to rely on the agreement in another jurisdiction, but also for clients whose personal and business interests are in England, and who would therefore expect that any legal disputes they might have would be dealt with in England. The various decisions on pre-nuptial agreements suggest that the following are likely to be considered important when the court is deciding what significance to attach to a pre-nuptial agreement. Following the decision in Granatino it seems that the emphasis will now be more on whether the parties in fact understood the possible consequences of the agreement when it was signed, and whether it was freely signed, than on strict compliance with a set of legal ‘requirements’, particularly in international cases. In purely English cases it is nonetheless recommended that all the following are considered carefully when entering into a pre-nuptial agreement.

Fair and Genuine Agreement
The court will want to determine whether there was a fair and genuine agreement between the parties. In making that decision, relevant considerations will include the terms of the agreement, in particular whether the agreement seems to favour one party over another; whether the parties each had independent legal advice; whether both understood the true financial position and the terms of the agreement; whether all the relevant information was known by both parties; how long before the wedding the agreement was signed (an agreement signed immediately before the wedding is less likely to be treated as significant than one signed some time before); whether any particular pressure was applied by either party; whether either party was under any pressure from another source; and whether either of the parties had exploited a dominant position, financial or otherwise. It might also be relevant whether the agreement made provision for significant changes in circumstance, such as the arrival of children (although see below). Equally, an agreement that fails to acknowledge in any way the non-financial contribution of one of the spouses to the marriage, stating, for example, that one of the parties is to leave the marriage with nothing, no matter what the state of their personal finances, is generally less likely to be upheld.

It should be noted that in Granatino the Court of Appeal considered that the pre-nuptial agreement should be given decisive weight even though many positive factors were missing, but that was an international case in which both parties were in truth well aware of the legal and financial significance of the agreement being signed, and were reaching an agreement on genuinely equal terms. Even in that case, although the agreement under which the husband was to leave the marriage with nothing was in substance upheld, the Court of Appeal accepted that the husband was entitled to be housed while the children were spending considerable periods of time with him, and was entitled to a significant sum, in the region of £70,000 pa until the youngest child was 22, in order to acknowledge his role as a home-maker.

In general, the more obviously fair and even-handed the agreement is, the more likely it is that the agreement will be given some weight.

Size of the Assets before Marriage
The court is more likely to give weight to a pre-nuptial agreement which sets out significant assets owned by one of the parties before the marriage, than to one involving relatively few pre-marital assets.

Relevance of the Agreement to the Actual Position of the Parties
The court will wish to consider how close the actual family circumstances are to those set out in the agreement. The closer the circumstances at the time of the divorce are to those envisaged in the original agreement, the more likely it will be that the terms of the agreement will have some impact on the terms of the order. Clearly, passage of time will be a factor, but even in a short marriage the arrival of children or unanticipated family responsibilities, a dramatic change in the couple’s financial circumstances or in their health, indeed any serious change of circumstances, would make it less likely that the agreement would be considered relevant. Even in Granatino, in which the Court of Appeal considered that the lack of any reference in the pre-nuptial agreement to the arrival of children was not significant because it was ‘to be assumed that the young couple expected to start a family after marrying’, the Court went on to award payments to the husband in his role as ‘father’, thereby acknowledging that the agreement had failed to make provision for the significant changes to the couple’s relationship involved in becoming parents.

Length of the Marriage
As noted above, the simple passage of time means that the family circumstances of a couple who have been married for some time are unlikely to resemble their circumstances at the time they entered into the agreement. The circumstances of a couple who have been married for a short time are more likely to match those of the agreement. However, even if an agreement made before the marriage considers and provides for the current situation of the parties, having anticipated the arrival of children, health issues, assets acquired since the marriage and additional family responsibilities for either party, the court may still refuse to give decisive weight to a pre-nuptial agreement in a long marriage between two English nationals, no matter how accurately the agreement has forecast the couple’s circumstances. An agreement made between two 30 year olds might accurately predict the likely financial situation of the couple at the age of 50, but it could not possibly take account of their experiences over the 20 years of marriage. Given the long-standing concern of the English courts to consider all the circumstances of a marriage and to reach a conclusion that is fair to both parties, until new legislation is introduced English judges are likely to resist treating an ‘old’ agreement as the decisive factor when dividing family assets on divorce.

Post-nuptial agreements and financial orders

Since the decision in MacLeod v MacLeod, it may be that the best possible advice to someone with a pre-nuptial settlement, is to consider turning it into a post-nuptial agreement by entering into a deed some time after the marriage ceremony, in the same terms as the pre-nuptial agreement but taking into account any changes of circumstance. This is because, unlike pre-nuptial settlements, post-nuptial settlements can already be, indeed perhaps usually will be, enforceable agreements. The judges in MacLeod distinguished between pre-nuptial and post-nuptial settlements on technical legal grounds, but also on the basis that there was an enormous difference between an agreement providing for a present state of affairs between a married couple, and an agreement which purported to govern what might happen in an uncertain and unhoped for future, made before the parties had committed themselves to marriage. In particular, a post-nuptial agreement was not the price that one party could extract for his or her willingness to marry. Although the Court of Appeal expressed reservations about such a firm distinction between the two different sorts of agreement, and pointed out that inequalities of bargaining positions might very well survive, or even be exacerbated, by marriage, the current legal position is that post-nuptial agreements are recognised as potentially enforceable agreements, while pre-nuptial agreements are not.

Therefore, while the court retains the jurisdiction to review a post-nuptial agreement, and may decide in certain circumstances to vary its terms, the court does not have the same broad discretion to consider the fairness of post-nuptial settlements that it has in relation to pre-nuptial settlements. The country’s most senior judges made it clear in MacLeod that there was nothing to stop couples from entering into contractual financial arrangements governing their life together, and, more importantly perhaps, setting out the financial arrangements in the event of subsequent separation or divorce. MacLeod itself involved a pre-nuptial settlement that was reaffirmed after the marriage, taking into account certain changes in circumstance; this post-nuptial settlement was upheld as valid and enforceable.

Creating valid and enforceable post-nuptial settlements

Any contract, including a post-nuptial settlement, may be void if either party has made any misrepresentations, or there has been any undue influence.

If, for example, either the husband or the wife falsely represents in the agreement that they have less money than they in fact have, or if either gives the other a misleading account of the legal consequences of signing the document, the agreement may be void for misrepresentation, under ordinary contractual principles. ‘Undue influence’ involves one person misusing their influence over another to get them to agree to something that is not in their best interests. The court may choose to consider any contract obtained by undue influence as void, and in ancillary relief claims the court will be particularly aware of the possibility that one of the parties has placed unfair pressure on the other to sign the agreement, not least because family relationships are not like straightforward commercial relationships. Although the court will assume that each party to a properly negotiated agreement is an adult, and able to look after him or herself, the court will be alive to the risk of unfair exploitation of superior strength, and of inequalities of bargaining power. If the terms of the agreement seem strongly to favour one party over the other, the court is more likely to want to explore whether or not there has been undue influence.

To help prevent any arguments that a post-nuptial settlement is void for any of these reasons, the parties would be well advised to make sure that each party receives independent legal advice before signing the agreement, that there has been full disclosure of all the relevant information, including the true financial position and the terms of the agreement, and that the agreement is properly negotiated.

For a number of reasons, post-nuptial settlements must be created by way of deed, rather than by any less formal agreement between the parties.

The court’s jurisdiction to vary post-nuptial settlements

The court retains the right to vary valid and enforceable post-nuptial settlements, but only in certain circumstances. If the family court is to vary an otherwise valid agreement concerning financial arrangements, there must be (i) a change of circumstances making the agreed financial arrangements manifestly unjust; or (ii) a failure to make proper provision for any child of the family; or (iii) an arrangement which, contrary to public policy, requires the state to support someone who ought to be supported by the family. The court cannot set aside a valid post-nuptial agreement merely because it is does not achieve the result the court considers would have been fair: one of the three factors listed above is needed.

If there has been a significant change of circumstances, making the agreed financial arrangements in the post-nuptial contract manifestly unjust, the court’s discretion to vary the agreement may extend to completely rewriting the terms of the agreement. In particular, if the agreement has failed to take account of the birth of children, the court is likely to make some radical changes to the agreement. A well-drafted agreement should make provision for a wide range of possible future circumstances, including those which the parties themselves may consider to be extremely unlikely, but it is in any event a good idea for the terms of the agreement to be reviewed after any significant change in circumstances. It is not uncommon, for example, for a couple to agree at an early stage in their relationship that they do not want children, and later for the couple to have children together, whether deliberately or accidentally. If such a couple have signed a pre-nuptial agreement making no provision at all for the additional responsibilities and workload associated with children, or have signed a post-nuptial agreement that does not take account of, and is not updated to take account of, those additional responsibilities and workload, the court is likely to consider that the agreement is manifestly unjust. The court is likely then to go on to vary the agreement so that the contribution of the primary carer, usually the mother, to the welfare of the family is recognised in the financial settlement in some way.

It is perfectly possible for an agreement to make adequate provision for a husband or wife in their role as parent, and to provide proper accommodation for the husband or wife as an individual, but not to make adequate or any provision for the children of the family. If an agreement does not contain proper financial arrangements for the children, the court will intervene and make such arrangements, but will not need to vary any other aspect of the agreement. The general view taken in English law is that children are entitled to a suitable home, and to an upbringing and education appropriate to the family’s circumstances and standard of living, but that they are not entitled to long-term provision into adulthood unless they have some special need. Therefore, the obligation to provide a home or maintenance for a child almost always ends either when the child becomes 18, or when the child finishes tertiary education (although a gap year may be included). For example, a husband may have to provide a suitable home for the children to live with the wife, as primary carer, even though a valid enforceable agreement between the couple means that the husband has no separate obligation to provide a home for the wife. The husband’s responsibility for ensuring that the children have a proper home while living with the wife comes to an end when the children become adults or leave tertiary education, so the property provided for them will revert to him when his obligation towards the children ends. Judges must not use financial arrangements for the children in such a way as to benefit a spouse whose financial claim has been dealt with by agreement.

An agreement, however freely entered into, that leaves one spouse with no means of financial support of any kind is much less likely to be enforced, because the state should not be expected to take financial responsibility for members of a family if the family can itself provide a proper level of support. Although in Granatino the Court of Appeal upheld just such an agreement, the husband in that case had an income, albeit a relatively small one, and he did not have to turn to the state for support. It is not clear what position the Court would have taken if the effect of the agreement had been to make the state responsible for the husband’s support following divorce.

Entering into agreement freely and knowingly

Since the Privy Council decision in MacLeod, which made it clear that valid post-nuptial settlements are enforceable by the courts, it seems likely that many more post-nuptial settlements will be negotiated and signed. In particular, couples with a pre-nuptial agreement should reaffirm the terms of the original agreement if they want the agreement to be recognised by the English court; any such post-nuptial agreement must take into account any change in circumstances and, as with any agreement, must not be obtained by unfair means.

Notwithstanding that the English courts are currently not bound by pre-nuptial agreements, and do not always consider them to be relevant to the division of assets between the parties, some people contemplating marriage may wish to consider making a pre-nuptial agreement in any event, because, for example, what principally concerns them is the possibility of a very short marriage having very serious long-term financial consequences. At the end of a short, childless marriage, it is highly likely that, as in Cornick v Cornick, the English court would consider a fair pre-nuptial agreement, signed by the parties freely, with the benefit of independent legal advice and full disclosure of the true financial position, to be highly relevant to, even determinative of, the question of the parties’ financial relationship on divorce.

People considering entering into a pre-nuptial agreement, and even more so international couples living in England who entered into such an agreement on the basis that it would be binding on them, will also be interested to know that, in the opinion of the Court of Appeal, in so far as the rule that pre-nuptial contracts are void has survived, it is an increasingly unrealistic rule, reflecting the laws and morals of earlier generations, and does not sufficiently recognise the rights of autonomous adults to govern their future financial relationship by agreement. The Court of Appeal in Granatino stated that due respect for adult autonomy suggested that, subject to proper safeguards, a carefully fashioned pre-nuptial contract should be available as an alternative to the stress, anxieties and expense of a submission to the width of judicial discretion.

Whether pre-nuptial or post-nuptial settlements are being considered it is important that the couple genuinely reach agreement in a fair and transparent way. Any evidence that one side dictated the terms of the agreement, refusing to permit real negotiation, will weaken a pre-nuptial agreement, and, in the case of a post-nuptial settlement, may lead to the court deciding that the agreement is void for misrepresentation or undue influence. It is not clear whether the new emphasis on an overview of the fairness of the agreement, and whether the parties really understood the potential consequences of the agreement, rather than upon whether all the ‘formalities’ were observed, will apply to English cases, or will be restricted to international cases, but in any event, the agreement will be more open to court scrutiny if the formalities are not observed.