An undertaking is a solemn promise you make to the court, for example not to contact the applicant or go to their home. If the court accepts your undertaking, it usually discharges the non-molestation order and records your promise instead.
Why respondents choose undertakings
- No findings of fact are made. You don't admit the allegations.
- Breaching an undertaking is not a criminal offence (unlike breaching a non-molestation order). It is contempt of court, dealt with by the family court.
- It avoids a stressful and potentially expensive contested hearing.
When the court may not accept an undertaking
Under section 46 of the Family Law Act 1996 the court cannot accept an undertaking instead of making a non-molestation order where it appears that you have used or threatened violence against the applicant or a relevant child, and that a non-molestation order is necessary so that any breach can be punished as a criminal offence. The applicant can also oppose an undertaking.
Consequences of breaking an undertaking
A breach can lead to committal proceedings, with the possibility of a fine or imprisonment for contempt of court. Never treat an undertaking as "lighter" than an order.
Undertaking or order: which is better for me?
It depends on your circumstances: for example your job, any immigration matters, the children arrangements, and the strength of the evidence. Talk it through with a free advisor before you decide, and before you complete the FL435.
Frequently asked questions
Is an undertaking the same as admitting guilt?
No. An undertaking is given without any findings being made, and you don't admit the allegations.
Is breaching an undertaking a criminal offence?
No, it is contempt of court, but it can still result in a fine or imprisonment through committal proceedings.
How long does an undertaking last?
For the period stated when it is given, often similar to the length of the order it replaces.