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FAQ: What is an Undertaking?

It is common practice for many solicitors to give undertakings on a daily basis. However for the ordinary client involved in family proceedings, undertakings are an unfamiliar territory and we are often asked to explain what an undertaking is. A client is usually required to provide an undertaking in financial settlement cases and children proceedings.

An undertaking is “a promise given by one party to the Court, frequently of mandatory nature and relating to an obligation to the other party in proceedings.”

Undertakings are a legally binding promise which carry severe consequences if breached. You should only make an undertaking if you are certain that you are capable of adhering to the terms of the undertaking.

They are used as a way of incorporating a term into an order which falls outside the remit of orders that the Court has the power to make.

There are several types of undertakings such as:-

  1. To Do or Abstain From Doing

For example, in financial settlement proceedings you may undertake to release your partner from the mortgage.

You could also undertake not to do something. This does not mean that you would be admitting past wrong conduct. It simply means that if you break the undertaking you will subjected to the below consequences:

  • Contempt of Court
  • Imprisonment
  • Fine and/or assets seized.
  1. To Pay Money

You may be required to undertake to pay a sum of money, either in one lump sum or in instalments. If you fail to make payment (whether that be a lump sum or one of instalments) the person receiving the payment can apply to Court to enforce the undertaking. If the Court finds that you have the means to pay the sum agreed but you either refused or neglected to pay, you can be sent to prison.

When making an undertaking, you should sign to confirm that you understand the consequences of breach and how serious they are.

If you would like to discuss this further, please contact Lynn Gooch on 01992 578642 for more information.

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