An undertaking is a promise to the Court that you will, or will not, do something. Undertakings are useful to use when the Court cannot order that you take a certain action. For example, the Court cannot order the mortgage company to release your Husband or Wife from the mortgage. You can give a promise to do everything you can to release the other party from the mortgage and, until recently, it was thought that this was a pretty safe way of ensuring that the Wife could stay in the property, paying the mortgage, and the Husband would be discharged from those obligations. This is especially important if being named on one mortgage will stop him being named on another and buying his own property in the future.
The Supreme Court gave judgment last week on just this issue. The Wife had given an undertaking in 2010 to ensure that the Husband was released from his mortgage obligations. If she could not do this by 30 September 2012, the home was to be sold. The Wife had hoped that by that this time, she would have started in employment or her brother or sister would guarantee the mortgage for her. This did not happen. She made an application to vary the undertaking as she did not want to sell the home. It was near the children’s school and it would be damaging to the children to have to move. The following litigation was based on whether the Court had the power to do this.
The Supreme Court ruled that, as the undertaking was a solemn promise to the Court, it could not be varied but that the Court could discharge the undertaking and replace it with an alternative promise. A further hearing will now take place to see what promise should be substituted in its place.
If you have any queries about how this affects your case, please get in touch.
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