Cross-Undertakings in Family Law – When to Give Them

A Non-molestation order is a protective injunction that the Court can make to protect victims of domestic abuse against further harm.

Once an application has been made, respondents may propose or request cross-undertakings. These are mutual promises made to the Court by both parties to avoid often costly and stressful litigation. Whilst this can be a pragmatic solution for many people, there are other important aspects to consider.

What Is a Cross-Undertaking?

Cross-undertakings are legal promises made by both parties in injunctive proceedings to refrain from doing certain acts such as harassing, insulting or abusing another party.

Whilst these are legally binding promises to the Court, they do not carry the same sanctions that a breach of a formal non-molestation order does.

Pros of Cross-Undertakings

Avoids Escalation

Cross-undertakings can diffuse conflict and avoid a contested hearing, which can be emotionally and financially draining for both parties.

Speed and Cost-Efficiency

They allow for a quicker resolution without the need for lengthy litigation or legal fees.

No Finding of Fact

Entering into a cross-undertaking is not an admission of guilt on the part of the respondent and so may be preferable for respondents with concerns that a finding of fact could be used against them in future legal proceedings.

Cons of Cross-Undertakings

Enforceability

A key downside is that a breach of a cross-undertaking is not a criminal offence in the same way as a non-molestation order. Unlike a non-molestation order, a breach must be enforced through civil contempt proceedings. As a result, you may end up returning to court to enforce the same. This can be complex and costly.

May Minimise Serious Allegations

Agreeing to mutual undertakings may risk the applicant feeling that they have not received any justice. Cross-undertakings can make the applicant and respondent feel that they are on a level footing, rather than the abused and abuser. Many domestic abuse charities have raised concerns over the increased use of cross-undertakings.

Not Suitable in All Cases

Where there is evidence of ongoing risk or harm, particularly involving children, a formal non-molestation order may be more appropriate and necessary.

Cross-undertakings can be a valuable tool in resolving disputes cost-effectively and amicably, but they must be weighed up in each case. Legal advice can be useful in understanding the merits of your case and whether undertakings may be appropriate.

If you are considering or facing a non-molestation order application and want to understand your options, including cross-undertakings, contact our family law team for further information.