Domestic abuse injunctions vs. undertakings: why a promise to the court isn’t always enough

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This article covers the law of England and Wales.

When a relationship breaks down, the law offers various tools to manage the fallout, protect people, and keep matters out of court where possible. Anyone considering or responding to an application for a domestic abuse injunction will likely come across one of the most commonly used, and frequently misunderstood, of these tools: the undertaking. Quietly powerful, often underestimated, and occasionally catastrophic when ignored, undertakings deserve far more attention than they typically receive.

What exactly is an undertaking?

An undertaking is a formal promise made to the court. When a party gives an undertaking, they are binding themselves to a course of action or inaction, and the court takes that commitment extremely seriously.

In family proceedings, undertakings arise in many different contexts. A spouse might undertake not to dispose of matrimonial assets pending financial remedy proceedings; a parent might undertake to facilitate contact with the other parent at specified times; a party might undertake to vacate the family home by a particular date, or to refrain from attending a certain address, or to keep up mortgage payments while a property dispute is resolved.

The key characteristic that distinguishes an undertaking from a polite request is that breach of an undertaking is contempt of court which can result in committal to prison.

Why are undertakings used?

The appeal of undertakings from a procedural standpoint is considerable. They allow parties to resolve matters without the court needing to make a formal order, including domestic abuse injunctions, which can be useful where one or both parties wish to avoid the adversarial sting of being ordered to do something. Critically, undertakings can be used to bring litigation to an end without the court making any findings of fact, meaning the underlying allegations are never tested or determined. There is a degree of autonomy involved, the party volunteering the undertaking is, in theory, choosing to make that promise.

Undertakings are particularly common in applications for non-molestation orders and occupation orders, often collectively referred to as domestic abuse injunctions, under the Family Law Act 1996 ("the FLA"). Where a respondent is willing to give undertakings, the court may accept them instead of making a formal domestic abuse injunction. This can resolve matters more quickly, reduce legal costs, and avoid the stigma of being the subject of a formal order.

The problems with undertakings

For all their utility, undertakings come with significant drawbacks that anyone involved in family proceedings should understand clearly.

Enforcement is the biggest practical problem. Unlike a court order, an undertaking cannot carry a power of arrest, section 46(2) of the FLA expressly prohibits it. This means that if someone breaches an undertaking, for example not to harass or intimidate their former partner, the police cannot arrest that person simply because of the breach in the way they could if a domestic abuse injunction, such as a non-molestation order, had been made instead.

There is also the question of admissions. An undertaking is not an admission of wrongdoing. This is presented as a benefit by some, as a respondent can give assurances without acknowledging any fault. But for applicants, this can feel deeply unsatisfactory. If your former partner has behaved badly, the idea that they can give a promise to stop, without any formal finding of misconduct, can seem like justice only half-served.

Finally, there is the issue of compliance. Undertakings rely, to a greater extent than orders, on goodwill. In the most acrimonious of separations, goodwill is typically the first casualty. Parties who give undertakings under pressure, or who feel they had little choice, may treat them as a formality rather than a genuine commitment.

Domestic abuse injunctions vs. undertakings: a particular warning

The limitations of undertakings become most acute, and most consequential, in proceedings under the FLA. In these cases, someone is seeking protection from harassment, intimidation, or abusive behaviour. The stakes could not be higher, and it is precisely in this context that the gap between an undertaking and a formal domestic abuse injunction, such as a non-molestation order, is most risky.

Under the FLA, the court has power to make non-molestation orders protecting an applicant from specific behaviours by an associated person. As noted above, breach of such an order is a criminal offence under section 42A of the FLA, carrying a maximum sentence of five years imprisonment. It gives the police clear and immediate grounds to act.

An undertaking is not enforceable in the same way. However, often in cases where the allegations are disputed or the respondent presents as cooperative and remorseful, parties and judges alike may be inclined to accept an undertaking as a pragmatic resolution that closes the proceedings without a contested hearing.

We have seen, more than once, what can happen next. Proceedings are concluded on the basis that a respondent has promised the court not to engage in certain behaviours, for example not to contact, harass, or intimidate the applicant. The applicant goes home believing the matter is resolved and that they are protected. Within days, or sometimes hours, the messages start again. The respondent, having said what was needed to bring the proceedings to an end, has no intention of honouring the commitment they made. The applicant calls the police.

This is usually the point where things start to unravel. The police arrive, the situation is explained, and the answer is often frustratingly simple, no criminal offence has been committed. There's no non-molestation order in place, so section 42A of the FLA doesn't apply.

The breach of an undertaking isn't criminal, it's civil contempt. That distinction matters in practice. It means the police can't just arrest the respondent for breaching it. At most, they'll log the incident and offer advice. If the behaviour crosses into something else, harassment, for example, they might have grounds to act. But the straightforward, immediate enforcement you would get with a domestic abuse injunction just isn't there.

The applicant, now at risk and frightened, must instead return to their solicitor, who must file a committal application, serve it on the respondent, and wait for a court hearing. In urgent cases an expedited listing can be sought, but the court system is stretched, and "expedited" does not mean immediate. During that window, the applicant is left exposed.

This is not a theoretical concern. It is a pattern we have encountered in practice, and it underscores why the decision to accept undertakings in FLA proceedings is one that should never be taken without a thorough understanding of the risks.

When should undertakings be refused?

The short answer is that undertakings should be treated with real caution and in some cases refused entirely. Where there is any history of controlling or coercive behaviour, any pattern of escalation, any breach of prior agreements or orders, or any reason to doubt that a respondent will comply without compulsion, caution is essential. Applicants should be prepared to resist pressure to accept what appears to be a quick resolution if the safer and more enforceable route is a formal order.

When the promise is broken: enforcing a breach

If someone breaches an undertaking, the route to enforcement is an application for contempt. The potential consequences include a fine, a suspended sentence, or in more serious cases, an immediate custodial sentence.

An application for contempt is not a quick process; courts will scrutinise the evidence carefully. The applicant must be able to prove the breach to the criminal standard (beyond reasonable doubt), as a person's liberty is at stake. This is a higher bar than the usual civil standard of proof, and applicants need to be prepared to provide clear evidence of the breach.

The process starts with an application together with a statement setting out the alleged breaches. The respondent then has the chance to respond and be heard. If the breach is established, the court turns to sentencing, weighing the nature and gravity of what occurred, any pattern of non-compliance, and whatever mitigation the respondent puts forward.

Are undertakings worth it?

The honest answer is, it depends. In the right circumstances, undertakings are an effective mechanism. They can achieve outcomes that are practically indistinguishable from court orders, while preserving a degree of cooperation and avoiding the cost and delay of contested hearings. For financial matters, they provide flexibility that can be invaluable in reaching a comprehensive settlement.

In situations involving domestic abuse, coercive control, or any context where the safety of a party or children is at stake, the limitations of undertakings should be weighed very carefully. Speed and certainty of enforcement can, in those cases, matter enormously, and the gap between an undertaking and a formal domestic abuse injunction is not a technicality. It is the difference between conduct that is immediately and criminally enforceable, and conduct that requires a civil contempt application that may take days or weeks to resolve.

The starting point in any case should be a clear and thorough assessment of what you need the undertaking to do, how likely the other party is to honour it, and what your options are if they do not.

Speak to a solicitor

Undertakings are not boilerplate. They are tailored legal commitments with real consequences, and the wording matters as much as the substance. Whether you are considering offering undertakings to resolve a dispute, or you have received a proposal for undertakings from the other side and are not sure whether to accept, it is essential to understand exactly what you are agreeing to and what your options are if things go wrong.

Our team advises clients at every stage of proceedings, from the initial negotiation of undertakings to enforcement when promises are broken. We know from experience that what appears to be a swift and sensible resolution does not always provide the protection it seems to offer, and we will always advise you honestly about the risks before you commit to anything.

We're always happy to have a no-obligation chat about the way forward. You can reach us at familylawcity.co.uk or call the office on 020 4579 5360.

About the author

Steph Espinosa is a solicitor at Family Law in the City, specialising in financial remedy cases, Family Law Act proceedings and complex children cases.

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