January 18th, 2019
An undertaking is a legally binding promise made to the court. This promise can be to do something, or not to do something. Undertakings are commonly considered during injunction and financial proceedings and I consider below the position regarding injunctive undertakings.
Injunction proceedings can include applications for a non-molestation order or an occupation order. A non-molestation order is an order that prevents someone from molesting another associated person. Molestation can include anything from nuisance phone calls up to physical violence. An occupation order is an order that regulates the occupation of a dwelling home. It can exclude one person from the property, or regulate use of certain rooms etc.
Often injunctive orders and/or undertakings can be considered when two spouses are separating, and matters become particularly volatile. Where one spouse has made an application for a non-molestation order and occupation order against another spouse, undertakings can be offered as a compromise to avoid protracted court proceedings. The main benefit of undertakings in lieu of orders, is that no admission of fault is required. Undertakings are voluntary, and the court do not have to find that the person making the undertaking has done anything wrong. This can avoid the costs of further hearings, allowing parties to focus on longer term issues. The undertakings can mirror the injunctive orders sought.
What Is the Difference If There Is A Breach of An Undertaking Compared to An Order?
The main difference between orders and undertakings is the way in which they are enforced upon breach. A non-molestation order has a power of arrest attached to it automatically. That means if there is a breach, no matter how small that breach is, the person who is in breach can be arrested. A breach of a non-molestation order is a criminal offence and so can result in a criminal penalty and criminal record. An occupation order can also have a power of arrest attached, but this is not automatic.
In contrast, a breach of an undertaking is not a criminal offence. The person in breach will, however, be in contempt of court. It is therefore still enforceable. The other party can seek to have the person in breach committed to prison or fined for contempt of court. This requires an application to the court, and so it is not automatic. If the person is indeed found to be in breach, then they can be imprisoned for up to two years or be fined an unlimited amount.
If you have concerns about your spouses’ behaviour and you feel you need protection, or you are on the receiving end of an application for an injunctive order, please do give one of our solicitors a call on 01908 262680.
Having obtained her A Levels from the Royal Latin School in Buckingham, Rebecca Stewart went on to obtain a Legal Secretary Diploma through Pitmans Training and immediately following qualification secured a role at Hawkins Family Law. Following that she discovered her true ambition lay in becoming a Legal Executive specialising in Family Law.In 2012 Rebecca enrolled at Cilex Law School and by 2015 had completed all her level 3 exams, achieving distinctions in 3 of these modules, and is now an Associate Member of Cilex. Rebecca is now working towards her level 6 qualifications and is now able to act as a trainee Legal Executive under the supervision of the Directors of Hawkins Family Law.
Hawkins Family Law fields 'a very professional team that delivers a high-class service and has strength-in-depth from senior to junior level'. Managing director and team head Jo Hawkins provides 'clear and accurate advice and moral support through often testing times for her clients; she focuses on deriving the best long-term outcome for her client and other parties'. The practice has particular strength financial matters, including divorce and ToLATA proceedings. Other key figures include Loraine Davenport, who has strong collaborative law expertise and handles complex children cases and high-net-worth ancillary relief matters; Annabel Hayward, who focuses on complex financial provision and co-habitation matters; and Stacey St Clair.
For more information please click here.
What the team is known for
Boutique family law firm that punches above its weight in terms of high-value and complex matrimonial finance instructions relating to business assets, pensions and substantial property portfolios, including assisting with the handling of assets abroad. Also represents clients in the negotiation of wealth protection agreements and private law childcare arrangements. Fields a team trained in collaborative law and alternative dispute resolution.
An impressed client says: "The team's personal service and individual care is a great asset,"adding that the lawyers are "always available to assist and understand the occasional need for immediate advice and guidance, providing a very reassuring service."
For more information please click here.