In family law, it is sometimes necessary for the court to take action to regulate a person’s behaviour – whether that’s to compel them to act or refrain from acting in a certain way.
To achieve this, the court relies on two key mechanisms: orders and undertakings. While the two are very similar, there are some differences in how they are issued and the consequences of breaching them.
In this article, we’ll define both an order and an undertaking in family law and explain the main differences between the two.
What is an order in family law?
In family law, an order is a ruling issued by a judge. Orders usually require an individual to do or refrain from doing a specific action.
Court orders are legally binding and enforceable by law, meaning that it is a criminal offence to breach one. Those found guilty of breaching a court order could find themselves facing arrest and prosecution.
Examples of family law orders include:
- Non-molestation orders: Protects an individual from harassment or abuse by prohibiting certain behaviours.
- Occupation orders: Determines who can live in the family home or enter the surrounding area. Typically used to ensure the safety of individuals during domestic violence cases.
- Child arrangement orders: Specifies where a child will live and how much time they will spend with each parent.
- Prohibited steps orders: Prevents a parent from taking certain actions without the court’s consent (e.g. Relocating a child to another country).
- Financial orders: Stipulates how assets, spousal and child maintenance will be divided following a divorce or separation.
- Restraining orders: Prevents a person from contacting or approaching another individual.
What is an undertaking in family law?
An undertaking in law, is a voluntary promise made to the court by an individual committing to act or abstain from acting in a certain way. Undertakings are often made during legal proceedings concerning domestic violence, child custody, and divorce.
You may be wondering, if it’s a voluntary promise, is an undertaking legally binding? The answer is yes, undertakings are legally binding. However, breaching one is not a criminal offence, and a person cannot be arrested for it.
Examples of the types of undertakings that are made in family law include:
- Not to contact a former partner.
- To vacate the family home by a certain date.
- To comply with child arrangements.
- To pay financial support.
- Not to take a child abroad without court permission.
What is the difference between an order and an undertaking?
Court orders and undertakings are both legally binding, are used in similar circumstances, and have similar effects. The difference between the two lies in how they are issued and the consequences of breaching them.
When an order is issued, it is imposed by the court without an individual’s consent. In comparison, an undertaking is made to the court voluntarily by an individual.
If an individual breaches an order that has been imposed on them by the court, it is a criminal offence, and they risk arrest and prosecution. In contrast, breaching an undertaking is not a criminal offence, and you cannot be arrested for it. However, there are still consequences for being in breach of an undertaking. Individuals who do so could be fined or receive a prison sentence for contempt of court.
Navigating court orders and undertakings with Mark Reynolds Solicitors
At Mark Reynolds Solicitors, our team of specialist family law solicitors have helped countless families in the North West to resolve disputes amicably.
If you need legal support or advice regarding obtaining a family law court order or undertaking, or advice on any family law matter, contact us today for a free consultation.