At a non-molestation hearing you may be asked whether you would accept an undertaking from him instead of an order. If he has made an application against you as well, you may be asked whether you would both give one.
It can sound like the quick way to end things that day. But an undertaking and an order are not the same thing in law, and the differences are easier to understand before the hearing than in the corridor outside it.
This article sets out what the legislation in England and Wales says. It does not tell you which to choose.
What an undertaking is
An undertaking is a promise made to the court. Under section 46 of the Family Law Act 1996, wherever the court has the power to make a non-molestation order, it may accept an undertaking from any party to the proceedings.
Three things follow from the wording of that section:
- Either side can give one. The Act says “any party”, so it can be him, you, or both.
- It is binding. An undertaking is enforceable as if the court had made an order in the same terms.
- It is offered, not imposed. The Act says the court may accept an undertaking. It does not say a party must give one.
How it differs from a non-molestation order
What it is
- Non-molestation order: an order made by the court.
- Undertaking: a promise given to the court.
If it is broken
- Non-molestation order: breach without reasonable excuse is a criminal offence, with a maximum sentence of five years in prison.
- Undertaking: enforced through the family court as contempt of court.
Power of arrest
- Non-molestation order: breach is itself a criminal offence.
- Undertaking: no power of arrest can be attached.
As legal aid evidence of domestic abuse
- Non-molestation order: a protective injunction is on the accepted list.
- Undertaking: his undertaking is on the list only if you did not give a cross-undertaking relating to domestic abuse.
The criminal offence is in section 42A of the Family Law Act 1996, and it is written for non-molestation orders. The rule on arrest is in section 46(2). The route for enforcing an undertaking is set out in the Family Procedure Rules, which point to the rules on contempt of court.
When the court cannot accept an undertaking
Section 46(3A) says the court must not accept an undertaking in place of a non-molestation order where both of these apply:
- it appears to the court that the respondent has used or threatened violence against the applicant or a relevant child, and
- a non-molestation order is necessary for their protection, so that any breach can be punished as a criminal offence.
Both conditions are needed. This is not a ban on undertakings in every case involving violence. It is a rule that where the court considers the criminal sanction necessary for protection, a promise is not enough.
The legal aid rule
Legal aid for some family court matters depends on being able to show evidence of domestic abuse. The accepted forms of evidence are listed in Schedule 1 to the Civil Legal Aid (Procedure) Regulations 2012.
An undertaking given by him is on that list, with a condition. It counts only if you did not give a cross-undertaking relating to domestic abuse.
In plain terms: if he promises the court not to molest you, that promise can be used as evidence. If you both give that kind of promise, his no longer counts under that paragraph.
Two points keep this in proportion:
- The condition is specific. It is about cross-undertakings relating to domestic abuse. The wording does not cover every promise a person might give a court.
- The undertaking is one item on a long list. The same Schedule includes, among others, a protective injunction, a finding of fact by a court that there has been domestic abuse, and letters from health professionals and domestic abuse support services.
Questions worth asking before you agree
These are questions, not advice. The answers depend on your case, and a family solicitor or barrister is the right person to ask.
- Is he offering an undertaking, or am I being asked to give one too?
- If I give one, what exactly would it say, and does it relate to domestic abuse?
- Has he used or threatened violence against me or a child, and has the court been told?
- If he breaks his promise, what do I do and where do I go?
- Might I need legal aid for another family court matter, and what evidence would I have?
- Can I take legal advice before I decide?
What this article does not cover
This article is limited to what the legislation says. It does not cover how individual courts handle these decisions in practice, how undertakings are treated in later proceedings about children, or what is right for your case. It is general information, not legal advice.
For the costs risk and evidence standards in non-molestation applications, see our guide, Non-Molestation Applications: What’s the Catch.