What is an Undertaking in Law?

When you're going through a family law matter, it can sometimes feel like you're drowning in legal terms, especially when you're going through a stressful time and emotions are probably already running high. One of those terms that often comes up is undertaking. You might hear it mentioned in court proceedings, during negotiations, or by your lawyer, and wonder what it actually means.

Put simply, an undertaking is a promise made to the court or to another party involved in a case. It's a formal commitment to do (or not do) something, and it can be a powerful tool in resolving family law matters without needing a full court order. In many situations, it can help parties avoid prolonged litigation while still reaching an enforceable agreement.

Undertakings are common in family law proceedings and can arise in all sorts of situations, from parenting arrangements to property settlements. But understanding what they are, how they work, and the consequences of breaking one is essential to protecting your legal rights and responsibilities.

That's why our family lawyers in Sydney have put together this article, to explain how undertakings work in Australian family law, and to help you feel more confident navigating what can be a really stressful process.

Whether you're considering giving an undertaking, unsure if you've already made one, or worried about what happens if someone breaches an undertaking, this guide is here to support you with clear, practical information.

Types of undertakings

In Australian law, and especially in family law matters, undertakings can take a few different forms. While they may all involve a promise to the court or another person, the context and wording can vary depending on the circumstances of the case.

1. Personal undertakings

A personal undertaking is when a person gives an undertaking directly to the court or another party. For example, in a parenting dispute, one party might give a personal undertaking not to remove a child from school without the other party's agreement. In this case, the undertaking is treated seriously by the court and may be enforced in the same way as a breach of an order.

2. Solicitor's undertakings

These are promises made by a lawyer, typically to the court or to another lawyer, on behalf of their client. Solicitors' undertakings carry significant professional obligations, and breaching one can result in disciplinary action. They're less common in family law proceedings involving private individuals but may arise in matters involving property transactions or when filing with the court.

3. Court-accepted undertakings

Sometimes, during court proceedings, a judge may accept an undertaking instead of making a formal court order. In these cases, the court requires that person making the undertaking to follow through just as if it had made an order. These are often seen in family court scenarios when the parties agree to certain terms during negotiations or dispute resolution.

Regardless of the type, an undertaking is a promise that carries real legal weight. It's not just a casual agreement, it's a formal commitment that the court can enforce, and breaching it can lead to serious consequences.

How undertakings work in family law

In family law, undertakings are often used as an alternative to formal court orders. They're especially useful in situations where the parties want to avoid unnecessary conflict or delays in the court system, but still want to ensure a level of accountability.

An undertaking in family law works as a binding promise, typically made by one party to the other party, or directly to the court, to carry out or refrain from doing a specific act. For example, someone might agree not to contact their former partner outside of scheduled parenting arrangements, or to return a child's passport by a certain date.

While an undertaking doesn't have the exact same legal standing as a court order, it can still be treated the same way when it comes to enforcement. If someone breaches an undertaking, the court can respond seriously, sometimes even as if it were a breach of an order. That's because an undertaking is treated as a formal commitment made within the legal process.

In some cases, the court may invite or encourage one party to give an undertaking rather than pursue a full hearing. This can help streamline the process and reduce stress, particularly when both parties are willing to cooperate.

Undertakings in family law are commonly used in:

• Parenting matters (e.g. not taking a child overseas)
• Property disputes (e.g. not disposing of assets)
• Financial support situations (e.g. maintaining mortgage payments or financially supporting your former partner)

However, because they carry legal consequences, it's important to obtain legal advice from a reputable family law firm before agreeing to or offering an undertaking in a family law proceeding.

Scenarios where undertakings are used

Undertakings can be used in a wide range of family law matters. Whether you're dealing with parenting arrangements, dividing property, or negotiating financial support, an undertaking might be the court's preferred approach, or something the parties agree to avoid further conflict.

Here are some common examples:

Child custody and parenting arrangements

In parenting disputes, one party may give an undertaking not to relocate with the child without the other party's consent, or to ensure that the child attends school regularly. These undertakings can help build trust while the family court decides on final orders.

Financial support

A person might provide an undertaking to continue paying certain household expenses, like school fees or mortgage repayments, while the court proceedings are ongoing. This allows families to maintain some stability during what can be a difficult and uncertain time.

Property division

In property matters, undertakings are often used to prevent the sale or disposal of shared assets before a formal agreement is reached. For example, a person gives an undertaking not to sell a car or withdraw large sums from a bank account without notifying the other party.

Non-contact or behaviour undertakings

In cases involving family violence allegations or high conflict, one party might give a written undertaking not to contact or approach the other party. While this isn't the same as a protection order, it can provide a level of reassurance and may reduce the need for additional litigation.

Each of these scenarios involves a promise to the court or the other party, and in many cases, giving an undertaking can avoid the need for a full court order. But remember: if you breach the undertaking, the consequences can be serious, so it's vital to obtain legal advice before agreeing to one.

Consequences of breaching an undertaking

If someone gives an undertaking and then doesn't follow through, the breach of an undertaking can have serious legal consequences. It's not just a broken promise, it's a failure to comply with a commitment made during court proceedings, and the court can treat it very seriously.

In many cases, a breach of an undertaking is treated the same way as a breach of an order, especially if the undertaking is a promise made directly to the court. This means the court may:

• Issue a warning
• Order compensation or costs to the other party
• Treat the breach as contempt of court
• Impose a fine or imprisonment in more serious cases

If the court finds that a person has deliberately failed to comply with an undertaking, especially one that the court had made a condition of ongoing orders or interim arrangements, the person could be punished by a fine, or in extreme cases, face imprisonment.

Breaching an undertaking can also affect your credibility in the eyes of the family court, which may influence future decisions about parenting arrangements, property settlements, or other outcomes in your family law matter.

If you believe the other party has breached an undertaking, or if you're struggling to comply with one yourself, it's essential to obtain legal advice as soon as possible. There may be steps you can take to vary the terms, explain your circumstances to the court, or address the issue before it escalates.

How to write an undertaking

A well-drafted written undertaking should be:

• Clear and specific - The person giving the undertaking must clearly state what they will or won't do.
• Unambiguous - There should be no room for confusion about the action the court requires or what's being promised.
• Voluntary - You can't be forced to give an undertaking, but once it's given, the court expects you to follow through.

Here's an example of a simple undertaking in a parenting matter:

"I, Jane Smith, undertake to the Family Court that I will not remove the child [Name] from New South Wales without the written consent of the other party, John Smith, or an order of the court."

The person making the undertaking should sign the undertaking, date it, and provide a copy to the court and the other party. Depending on the situation, you may also need to serve a copy of the signed document and lodge it through the Commonwealth Courts Portal.

If you're unsure where to start or you're worried about what you're agreeing to, a family law firm can assist you to complete the undertaking correctly. Keep in mind that there are strict rules about what can be efile(d) with the court, and in some cases there may be a reason you cannot efile, so it's worth checking with your lawyer or the Federal Circuit and Family Court.

FAQs

Is an undertaking legally binding in family law?

Yes. While an undertaking isn't technically a court order, the family court can still enforce it. A breach of an undertaking can be treated the same way as a breach of an order, and in some cases, may lead to contempt of court proceedings.

What happens if someone breaches an undertaking?

The court can take action, especially if the person knowingly failed to meet the promise they made. Depending on the severity, consequences might include a warning, costs orders, or even imprisonment. If you believe the other party has breached their undertaking, it's important to obtain legal advice straight away.

Can I withdraw an undertaking after giving it?

You can't simply take it back. If your circumstances change or you feel you can no longer comply, you'll need to apply to the court to vary or withdraw the undertaking. Again, speak with a lawyer before doing this, acting without advice may lead to more issues.

How do I file an undertaking with the court?

Most documents in family law matters can be filed using the Commonwealth Courts Portal, but there may be situations where there's a reason you cannot efile. A family law firm can guide you through the process and make sure everything is done properly.

Is a solicitor's undertaking the same as a personal one?

No. A solicitor's undertaking is made by a lawyer and carries professional obligations, while a personal undertaking is made by the individual party. Both can be enforceable, but they are treated slightly differently in terms of who is responsible and how they are regulated.

How Unified Lawyers can help

Navigating the legal system during a separation or family dispute can be overwhelming, especially when you're being asked to make serious commitments like undertakings. Whether you're considering giving one, responding to one, or dealing with a possible breach of an undertaking, you don't have to figure it out alone.

At Unified Lawyers, our experienced family lawyers in Sydney can help you understand your legal rights and responsibilities, explain how the law applies to your unique situation, and make sure you're protected every step of the way. We'll take the time to listen and guide you with compassion, because we know this isn't just a legal matter, it's your life.

If you need help with an undertaking in family law, a court order, or any aspect of a family law proceeding, reach out to our team today. We're here to help you move forward with clarity and confidence.