Promises, promises

District Judge Adam Taylor explains how to extract an ancillary relief undertaking that is actually enforceable

Are undertakings in matrimonial consent orders enforceable? Although the precedents published by the Solicitors' Family Law Association have reached their sixth edition, the editors continue to express doubts.

There are two arguments against enforcing undertakings in matrimonial consent orders by committal.

The first affects only undertakings to pay money.

Section 4 of the Debtors Act 1869 abolishes imprisonment for civil debt, with certain exceptions.

Section 11 of the Administration of Justice Act 1970 limits the exceptions to, among others, High Court and county court maintenance orders.

'Maintenance' for this purpose includes a lump sum (schedule 8).

In Symmons v Symmons [1993] 1 FLR 317, an undertaking to pay additional spousal maintenance, school fees and for school clothes was held to be equivalent to an order and enforceable by committal.

In the light of this and earlier authorities, it seems clear that the court can commit for breach of an undertaking.

The maximum sentence is six weeks if the undertaking is to pay money (section 5 of the Debtors Act 1869) and two years in other cases (section 14 of the Contempt of Court Act 1981 (as amended)).

Personal service

The second argument against enforcement by committal is procedural.

County Court Rules 1981 (CCR) order 29, rule 1A (see second schedule to the Civil Procedure Rules 1998) requires the court to 'deliver' a copy of the document recording an undertaking to the party giving it, either by handing it to him before he leaves the court building or by posting it to him at his place of residence or through his solicitor.

Only if delivery in this way is not possible must the other party serve the undertaking personally.

In Hussain v Hussain [1986] 1 All ER 961, the Court of Appeal held that personal service of an undertaking was desirable, but not essential.

The giver of an undertaking is presumed to have notice of it, unless he proves otherwise.

CCR order 29, rule 1A was introduced after Hussain, but does not substantially change the position.

It does not, in most cases, require personal service of an undertaking, in contrast to rule 1(2), which makes personal service of an injunction a precondition of enforcement.

Even if personal service is required, the court can dispense with it retrospectively (rule 1(7); Davy International Ltd v Tazzyman [1997] 3 All ER 183).

Rule 1A refers to and must be read with rule 1.

The effect is to require the court, in certain cases, to endorse on an undertaking notice of the consequences of disobedience (a penal notice).

If the undertaking is in the nature of an injunction, the notice must be endorsed when the order is drawn up.

Other undertakings must be endorsed with a penal notice at the judgment creditor's request.

An undertaking to pay money is in the nature of a judgment or maintenance order, not an injunction, so a penal notice is not required by the rule.

It was held in Hussain that a penal notice was desirable, but not necessary, though 'it might be a ground of mitigation if the giver of the undertaking were able to satisfy the court that he had been unaware of the possible consequences of a breach'.

Rule 1(3) does not make the endorsement of a penal notice a precondition of enforcement.

The court probably retains its discretion to enforce an undertaking by committal in the absence of a penal notice, even when one is required.

The form used when an undertaking is given to a county court is N117.

Although it is prescribed, the form goes beyond rule 1A in requiring the judge to explain the meaning of the undertaking and the consequences of breach.

The form is not apt, and is not required by the rule to be used to record an undertaking given other than in person to the court.

Other means

Committal is an order of last resort (Danchevsky v Danchevsky [1974] 3 All ER 934, CA).

Other means of enforcement should be considered first.

In Gandolfo v Gandolfo [1980] 2 WLR 680, an undertaking to pay school fees, was held to be equivalent to an order for the purpose of enforcement by garnishee proceedings.

By analogy, the court should allow enforcement of undertakings by attachment of earnings, charging orders and execution against goods.

Consent orders often recite agreements instead of, or in addition to, undertakings.

Such agreements can be enforced by an application in the same proceedings for judgment (if the agreement is to pay money) or specific performance (Atkinson & anor v Castan & anor (1991) The Times, 17 April, CA).

But there is an important difference: an undertaking is enforceable as an order; an agreement is enforceable only if the court makes a further order embodying its terms.

Agreements are usually recited in matrimonial proceedings when the court lacks jurisdiction.

The court can make an order to enforce a compromise of proceedings which goes beyond the issues raised (Phillips (EF) & Sons v Clarke [1970] Ch 422), but it is not certain that it can enforce an agreement by an order falling outside its jurisdiction.

Proceed with care

Undertakings offer a stronger sanction and are easier to enforce than agreements, but advisers should use them with care.

The form of words recommended by the SFLA - 'Upon the parties undertaking to the court and agreeing with each other' - should be used.

The order should include liberty to apply to implement or enforce its terms, including any undertaking or agreement recited in it.

The parties, as well as their solicitors, should sign and the solicitor for a party giving an undertaking should declare that he has explained the meaning of the undertaking to his client and the consequences of failing to keep it.

The order should contain a statement by the giver of the undertaking in the same terms as that in form N117 - 'I understand the undertaking(s) that I have given and that if I break any of my promises to the court I may be sent to prison for contempt of court' - and be endorsed with a conspicuous penal notice: 'You may be sent to prison if you break the promises you have given to the court'.

Lastly, the solicitors for the giver of an undertaking should be asked to confirm that their client has received a sealed copy.

If these steps are taken, disputes about enforcement will be easier to avoid, and enforcement is less likely to be needed.

District Judge Adam Taylor sits at Reigate County Court