Undertaking vs non-molestation order: what is the difference?
At many first or return hearings, the question of an undertaking comes up. This page explains how the two compare so that applicants and respondents can follow the discussion. It is general information, not advice on which to prefer.
What an undertaking is
An undertaking is a promise to the court, made by a party, to do or not do specific things until a stated date or event. Section 46(1) says that wherever the court has power to make an occupation order or a non-molestation order, it may accept an undertaking from any party instead. Typical promises mirror the terms of an order: not to contact the other person, not to go to a named road, not to post about them.
Gov.uk describes an undertaking as given on a voluntary basis, instead of the court making an order. The court still has to be willing to accept it. Under section 46(4), an accepted undertaking is enforceable as if the court had made an order in the same terms.
What a non-molestation order is
A non-molestation order is made by the court under section 42 to prohibit the respondent from molesting the applicant or a relevant child. In deciding whether to make one, the court looks at all the circumstances, including the need to secure the health, safety and well-being of the applicant and any relevant child. The order can be made after a contested hearing, by agreement, or without notice at first. Our non-molestation order guide covers the application itself, and the FL401 guide walks through the form.
When the court cannot accept an undertaking
Two limits are written into section 46:
- Non-molestation orders, section 46(3A). The court must not accept an undertaking instead of a non-molestation order where it appears to the court that the respondent has used or threatened violence against the applicant or a relevant child, and that, for their protection, an order is necessary so that any breach is punishable under section 42A.
- Occupation orders, section 46(3). The court must not accept an undertaking instead of an occupation order in any case where a power of arrest would otherwise be attached to the order.
Section 46(2) adds that no power of arrest can be attached to an undertaking. The President of the Family Division's Guidance on non-molestation orders, in force since 12 January 2026, repeats the section 46(3A) limit and says that at a return hearing the court may explore whether the respondent will give an undertaking, or will agree to an order continuing with no findings of fact.
Side by side
| Undertaking | Non-molestation order | |
|---|---|---|
| What it is | A promise to the court by a party | An order made by the court |
| Legal basis | Family Law Act 1996 s.46 | Family Law Act 1996 s.42 |
| Who decides | The party offers it; the court decides whether to accept it | The court |
| When it is not available | Not instead of an order where s.46(3A) or s.46(3) applies | Available whenever the court considers it should be made |
| Breach | Contempt of court: a committal application under FPR Part 37 | Criminal offence under s.42A, or contempt, but not punished as both |
| Arrest | No power of arrest can be attached | Breach is an arrestable criminal offence; a warrant can also be sought on form FL407 |
| Findings of fact | None needed | None, if made by agreement or without admissions; findings if decided after a contested hearing |
| Police copy | Not covered by the FPR 10.10 delivery rule | A copy goes to the police (FPR 10.10) |
| Changing it later | Apply to the court to be released from or vary it | Apply on form FL403 to vary, extend or discharge |
How undertakings are recorded
An undertaking is written down, setting out each promise and when it ends, and the court explains its meaning and the consequences of breaking it. Gov.uk publishes a general undertaking form, form N117, which shows the usual layout: the promises, the end date or event, a note that the court explained the undertaking, and a statement the person giving it may be asked to sign confirming that they understand it and that breaking it can lead to a fine, seizure of assets or prison for contempt. The family court may use its own standard wording; what matters is the exact text you are given. The court's order for the hearing usually records that the undertaking was given and accepted.
How each is enforced
Non-molestation order. Under section 42A, a person who without reasonable excuse does anything the order prohibits commits an offence, punishable on indictment by up to five years' imprisonment, a fine, or both. Police can arrest for the offence. Section 42A(3) and (4) prevent the same conduct being punished both as a crime and as contempt. The protected person can alternatively apply to the family court for a warrant of arrest under section 47(8).
Undertaking. Breach is not an offence under section 42A, because that section applies to orders. Instead, the person relying on it can apply to the family court to commit the other person for contempt; FPR rule 10.13 applies Part 37 to such applications. Gov.uk's undertaking form warns that breaking the promises can lead to a fine, imprisonment or seizure of assets.
Findings and admissions
Giving an undertaking does not usually involve admitting anything, and accepting one does not involve the court deciding what happened. The same can be true of an order: the 2026 guidance says that if a respondent agrees to an order continuing with no findings of fact, the order records that. If the case is contested and decided after hearing evidence, the court may make findings, which can be relevant to other proceedings between the same people, such as a fact-finding hearing in a children case.
Points people consider
This is not a recommendation for either. People commonly weigh:
- whether section 46(3A) or 46(3) means an undertaking is not available at all;
- how quickly a breach could be acted on, given that one is a criminal offence and arrestable and the other needs a contempt application;
- whether a contested hearing, with evidence and possibly findings, is wanted or avoided;
- how any terms will work with child arrangements, work and travel;
- the end date, and what happens when it arrives.
Legal advice matters most when there is a criminal investigation or charge about the same events, an occupation order in issue, or children proceedings running alongside. Respondents can read our guide to responding to a non-molestation order, and anyone weighing representation can see a lawyer for a non-molestation hearing.
Free help
Legal aid is available for advice and representation on these orders, for applicants and respondents, subject to the means and merits tests; applicants for protection from domestic abuse have the upper financial limits waived. Check if you can get legal aid on gov.uk. Rights of Women offers legal advice lines for women, and the Men's Advice Line supports male victims of domestic abuse; these organisations are independent and do not endorse EvidenceCanvas.
Where EvidenceCanvas fits, and where it does not. EvidenceCanvas does not draft undertakings or orders, does not fill in any court form, and does not tell you whether to offer, accept or oppose an undertaking. Where the court has directed statements, it can draft a chronology or statement from your own documents for you to check before you sign.
Questions people ask
- Is breaking an undertaking a criminal offence?
- Not under section 42A, which applies to non-molestation orders. Breach of an undertaking is contempt of court and can lead to a committal application, with a fine, imprisonment or seizure of assets.
- Can the court always accept an undertaking instead of an order?
- No. It cannot where the respondent has used or threatened violence and an order is needed so that breach is punishable as a crime, or, for occupation orders, where a power of arrest would be attached.
- Does giving an undertaking mean admitting the allegations?
- Not usually. An undertaking is a promise about future conduct, and the court does not decide what happened when it accepts one.
- Can the police arrest someone for breaking an undertaking?
- No power of arrest can be attached to an undertaking. Enforcement is through a contempt application to the family court.
- Who decides between an undertaking and an order?
- The respondent can offer an undertaking and the applicant can give their view, but the court decides whether to accept it or make an order.
Checked on 23 October 2026: Family Law Act 1996 s.46, ss.42, 42A and 47; FPR Part 10; gov.uk form N117; gov.uk injunction guide; President of the Family Division's Guidance 2026 on non-molestation orders. General information for England and Wales, not legal advice. Your court's directions take priority over this guide.