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What is an undertaking?

An undertaking is a legally binding promise to the court to do something, or not to do something (depending on the circumstances).

The court may sometimes request or a party may volunteer to give an undertaking as an alternative to a non molestation or occupation order. Giving a legal undertaking is not a trivial matter.

See also Practice Direction 33A (Parts 1.1 to 1.6) ´Enforcement of undertaking to do or abstain from doing any act other than the payment of money´.

Practice Direction 33A - Enforcement of Undertakings

Is giving an undertaking an admission of guilt?

In giving an undertaking you agree to do, or not to do, something in the future. This need not mean you have admitted to carrying out those actions in the past, nor does it necessarily mean that the court considers that you have carried out those actions.

Can there be mutual undertakings?

Yes. Mutual undertakings can be given by more than one party to proceedings. In cases where both parties are alleging similar behaviour, the parties can make a mutual undertaking (a ´cross undertaking´).

Is there a penalty for breaking an undertaking?

Yes. Breaking an undertaking is ´contempt of court´ and is the same as breaking a court order. Depending on the circumstances, breaking an undertaking can result in imprisonment.

What happens when an undertaking is given?

To ensure that the person giving the undertaking is aware of the consequences of breaking that promise, the form of an undertaking to do or abstain from doing any act must be endorsed with the following:

´You may be sent to prison for contempt of court if you break the promises that you have given to the court´.

The undertaking should be recorded in a written (or typed statement) with the wording:

´I understand the undertaking that I have given, and that if I break any of my promises to the court I may be sent to prison for contempt of court´.

A signed copy of the undertaking should be filed with the court, and a copy provided to the other party to proceedings.

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Michael Robinson © 2014

Family law information for parents whose children are resident in England and Wales

Crown Copyright material is reproduced with the permission of the Controller of HMSO and the Queen's printer for Scotland.

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