What is an Undertaking in Family Law?

If you are taken to family court, you may be asked to give an undertaking. Undertakings may be given instead of or in addition to a court order, but fundamentally they represent 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.

However, undertakings are legally binding and enforceable, and there are many serious potential consequences for breaching an undertaking. For this reason, it is vitally important to understand undertakings as a legal mechanism before you enter into one.

Therefore, if you are wondering, "What is an undertaking in family law?" then 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 make an occupation order or non-molestation order, it may instead accept an undertaking from any party to the proceedings.

For this reason, an undertaking is different from a court order, although they are enforceable in many of the same ways. Breaking a non-molestation order is a criminal offence and will result in a criminal record if you are convicted, but this is not true of an undertaking, even if the penalties can be just as serious.

When considering giving an undertaking, you should judge whether your behaviour would be sufficient for a family court to issue an occupation order or non-molestation order against you. If not, there may not be a good reason for you to give an undertaking and you should consult with a legal expert at once for information about your available options.

What are the consequences of breaking an undertaking?

The penalties for breaking the promise you have made in an undertaking can be serious. In fact, you can face imprisonment for up to two years, receive a suspended sentence, or face an unlimited fine, so you should carefully consider the promises you make as part of your undertaking. However, depending on your circumstances, you may not have to serve your entire sentence if you are imprisoned on a charge of contempt of court (also known as an order of committal). In such cases, you will also be able to apply to discharge or "purge" your contempt either before sentencing or during your imprisonment, meaning that you issue a formal apology to the court in exchange for asking them to consider releasing you.

In some cases, if the apology is accepted, you might be released immediately, or receive a deferred release. On the other hand, if it is not accepted you will continue to serve your original sentence.

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 out our online contact form to arrange a call back.