What is an Undertaking in Family Law?
If you are taken to family court, you may be asked to give an undertaking. Fundamentally, this represents a legal promise to the court to engage in or refrain from a particular behaviour. In some cases, you may be able to give an undertaking to meet all the requirements of a court order without being officially issued with the order. In other cases, undertakings may be given in addition to a court order.
However, undertakings are legally binding and enforceable whether accompanied by a court order or not, and there are many serious potential consequences for breaching an undertaking. For this reason, it is important to understand undertakings as a legal mechanism before you enter into one.
If you are wondering, "What is an undertaking in family law?", the expert solicitors at Clough & Willis are here to answer your questions. We will explain what undertakings are, how they might apply to family law, the consequences if you breach an undertaking and everything else you might need to know about this procedure in family court.
When does an undertaking apply and how is it different from a court order?
The Family Law Act (1996) states that in cases where the court can issue an occupation order or non-molestation order, it may instead accept an undertaking from any party involved in the proceedings, subject to exceptions. This legally binding promise differs from a court order, even though both an order and an undertaking can be enforced in similar ways. One difference between an order and an undertaking is that breaking a non-molestation order is a criminal offence, leading to a criminal record upon conviction. Breaching an undertaking does not carry the same criminal implications, but the penalties can still be serious.
An undertaking may involve agreeing to behave in a certain way or to refrain from specific actions and can even require one party to pay money as part of its terms. Before agreeing to an undertaking, you should assess whether your behaviour would be sufficient for the family court to issue an occupation order or non-molestation order against you. If not, there may be limited benefit in giving such an undertaking, and it is advisable to consult with a legal expert to understand your options and obligations fully before making a decision.
What are the consequences of breaking an undertaking?
If you are convicted of a breach of undertaking, consequences are outlined in the Family Law Act and can be serious. An undertaking is a legally binding promise made to the court, similar to an order, and an undertaking must be followed carefully. If broken, you may face imprisonment for up to two years, a suspended sentence, or an unlimited fine. This highlights the importance of considering the promises you make when providing an undertaking.
There may be further consequences if you breach the undertaking and are imprisoned for contempt of court (also known as an order of committal). However, there may be situations where you do not have to serve your entire sentence. You have the option to apply to discharge or “purge” your contempt, which involves making a formal apology to the court and asking for a review of your circumstances.
If the court accepts your apology, you may be released immediately or have a deferred release. If the apology is not accepted, you will continue serving your original sentence. In some cases, the breach may involve an order to pay money, which could result in additional financial implications.
How long do court undertakings last?
Court undertakings generally last for a period specified by the court when they are agreed upon or ordered. This duration varies based on the circumstances of the case and the agreement between the parties involved. If no specific time frame is set, the undertaking may remain in effect until the court discharges it or the parties apply for it to be amended or ended. It is important to comply with the terms of an undertaking throughout its duration, as breaching it could result in further legal action.
What happens in court after an undertaking?
After an undertaking is given in court, it functions as a formal promise to the court to act or refrain from certain actions. The court will record this undertaking, and both parties are expected to comply with its terms. The court may monitor compliance, especially if the undertaking relates to the welfare of children or ongoing disputes.
Clough & Willis can help in situations where one party believes the other party has committed a breach of undertaking. Family law experts from our experienced team will apply to the court to address the alleged breach on your behalf. This may result in a hearing where evidence is presented, and the court decides on the appropriate response, which could include further orders or penalties.
If you need more information about undertakings or other matters relating to family law, contact the experts at Clough & Willis today. Call us on 0800 083 0815, or fill in our online enquiry form to arrange a call back.
