What is an Undertaking ?

[Peter B]

In the context of family law and divorce proceedings in England and Wales, an undertaking is a formal promise made by one party to the court. It's a serious commitment to do or refrain from doing something.  

Key features of an undertaking

• Legally binding: It's not just a casual promise; it's enforceable by the court.  
• Made to the court: Even if it benefits the other party, the promise is technically made to the court.  
• Consequences for breach: Breaking an undertaking can have serious consequences, including:
  • Being held in contempt of court  
  • Fines
  • Imprisonment (in extreme cases)  
• Can be given instead of a court order: In some cases, an undertaking can achieve the same outcome as a court order, but without the need for a formal order.  

Examples of undertakings in divorce

• Financial
  • To pay a certain amount of money by a specific date
  • To transfer ownership of an asset (e.g., a car)
  • To remove your name from a mortgage
• Children
  • To return a child to the other parent after a visit
  • To not remove a child from the jurisdiction  
  • To not make disparaging remarks about the other parent in front of the children

When might an undertaking be used?

• To avoid a court order: If parties agree on an action, an undertaking can formalize it without the need for a court order.  
• To show good faith: Offering an undertaking can demonstrate a willingness to cooperate and resolve matters.
• To address urgent issues: An undertaking can provide a quick solution while waiting for a court hearing.

Important points

• Think carefully before giving an undertaking: Make sure you understand the commitment you're making and can realistically fulfill it.
• Get legal advice: A solicitor can advise on whether an undertaking is appropriate in your situation and ensure it's worded correctly.
• Don't breach an undertaking: Take it seriously, as the consequences can be severe.  

If you're asked to give an undertaking or are considering offering one, it's crucial to seek legal advice to understand the implications and ensure you're protected.

Sources & Related Content

• https://www.rixandkay.co.uk/2023/02/08/the-difference-between-undertakings-and-orders-in-family-law/#:~:text=An Undertaking is defined as,upon the person making it.
• https://coodes.co.uk/legal-jargon/what-is-an-undertaking/#:~:text=Undertakings are a common part,%2C or not do%2C something.
• https://hunteranduro.co.uk/undertakings/
• https://www.clough-willis.co.uk/news-events/what-is-an-undertaking-in-family-Law#:~:text=If you are taken to,consequences for breaching an undertaking.
• https://www.herbertsmithfreehills.com/notes/litigation/2022-12/court-can-refuse-to-accept-a-partys-undertakings-as-part-of-settlement#:~:text=The court noted that%2C where,proceedings for contempt of court.
• https://supportnav.org.uk/protection/legal-protection/after-applying/undertakings
• https://www.markreynoldssolicitors.co.uk/what-is-an-undertaking-in-family-law/#:~:text=In family law%2C an undertaking,need for a court order.
• https://foskettmarr.co.uk/faq-what-is-an-undertaking/

Edited October 27, 2024 by Peter B