Affidavit Format, Template, Definition and Requirements: What is an Affidavit?
An affidavit is a formal sworn statement of fact, signed by the declarant (who is called the affiant or deponent) and witnessed (as to the veracity of the affiant's signature) by a taker of oaths, such as a notary public. The name is Medieval Latin for "He has declared upon oath".
Disagreements are brought to the court by the parties in dispute. Courts will only decide what the disagreeing or disputing parties ask the court to decide. Each party sets out their own particular issues and each party is responsible for presenting evidence to the court which supports their version of events. The court's function is to adjudicate (judge) on the disagreement after considering the differing versions of events which each party tells the court about. This is described as the adversarial system.
Affidavits are a way of giving evidence to the court other than by giving oral evidence. They are a means of telling the court about the facts (evidence) which support particular issues raised by each party. Affidavits as a form of evidence allow the court to weigh up differing versions of events.
Affidavits may sometimes contain a statement of fact based on information or belief, but the grounds supporting that information or belief must then also be set out in the affidavit. Sometimes, the maker (deponent) of an affidavit may be cross-examined on the contents of the affidavit. In accordance with the Supreme Court (General Civil Procedure) Rules 2005, affidavits can be used in many ways and in relation to many types of proceedings.
The Requirements for an Affidavit
An affidavit is a statement of facts committed to writing by an individual who has sworn an oath asserting the veracity of those facts. The oath or affirmation is made to a person determined by law to be qualified to receive such an oath. Typically, affidavits are used as a means of securing statements from individuals in a reliable format that is considered reliable, mainly for purposes of legal proceedings or character evaluations for admission to a state bar association or other professional licensing board.
Name and Signature of the Party Making the Affidavit
The first requirement of an affidavit is the name and signature of the affiant, the person making a statement in the affidavit. This person is swearing under either an oath or affirmation that the statement he is making is the truth. The credibility of the statement is, in theory, bolstered by the fact that the affiant is subject to some sort of penalty in the event he has lied in his statement. The penalty varies significantly by jurisdiction and can include fines and/or jail time of several years. The harshness of these penalties reflect the importance that the American legal system places on the veracity of affidavits and sworn testimony in general.
The statement is the "meat" of the affidavit. This is typically a statement of facts; it is generally not appropriate for an affiant to discuss his opinions in the statement unless offering an expert opinion. Additionally, facts stated in an affidavit should be from the first-hand knowledge of the affiant, rather than second-hand knowledge, which may constitute hearsay.
Day and Place of Affiant's Signature
The affidavit must include the day and place of the affiant's signature for the purposes of a time reference. Fact-finders may find it helpful to put an affidavit into context by considering where and when the statements within the affidavit were made. For example, an affidavit created and signed several months after the relevant event may be much less credible to a fact-finder than one created and signed within hours of the relevant event.
Name, Occupation and Signature of the Witness
The affidavit must include the name, occupation and signature of the witness to the statement. Most states specify that this person must be legally capable of serving as a witness to an affidavit. This is typically a notary or an officer of the relevant court, such as an attorney. The affiant typically swears some sort of oath to the witness verifying the truth of what is asserted in the affidavit. In many states, falsely swearing this oath may subject the affiant to perjury charges.
General information and FAQ`s
do I file an affidavit?
In the Family Court, you need to file an affidavit with an interim application, response or when directed by the Court. The Family Court has a blank affidavit form which can be used by applicants and respondents. In the Federal Magistrates Court, you need to file an affidavit with your application or response, for both interim and final orders, and when directed by the Court. The Federal Magistrates Court has a blank affidavit form which can be used by applicants and respondents.
I prepare my own affidavit?
Although you can prepare your own affidavit, it is often not easy. If you need help preparing your affidavit, you should seek legal advice. You can get legal advice from a:
legal aid office
community legal centre, or
private law firm.
Court staff can help you with questions about court forms and the court process, but cannot give you legal advice.
do I structure an affidavit?
In the Family Court the affidavit should be typed. In the Federal Magistrates Court, the affidavit may be typed or printed clearly on only one side of the page. The content of an affidavit should be divided into paragraphs that are numbered. It is a good idea to divide an affidavit into sections under separate headings; for example, the heading might be ‘Arrangements for the children after separation’ or ‘Property accrued during the marriage/de facto relationship’. Each paragraph should, if possible, cover one topic or subject matter.
by other witnesses
If you are relying on evidence from a third party to support your case, such as a family member, friend or professional, you will need to file a separate affidavit on their behalf. You should only file an affidavit by a witness if the evidence is relevant to your case.
Unless a court orders otherwise, a child (under the age of 18 years) should not prepare an affidavit to support your case.
can I say in an affidavit?
An affidavit is a statement of facts. Therefore, you should include all the facts that are relevant in your case. Importantly, your affidavit should support the orders you have asked the Court to make in your application or response. The length of your affidavit will depend on the complexity of your case. Your affidavit does not need to be lengthy as long as you include all the facts that you are relying on as evidence. Try and leave out things not relevant to what the Court has to decide.
I give my evidence in court instead?
There is limited opportunity to give a personal account of your evidence in court. Most evidence is provided by affidavit. This allows a case to run more quickly and efficiently as all parties know what evidence is before the Court.
should not be included in an affidavit?
Generally, an affidavit should not set out the opinion of the person making the affidavit; that is, it must be based on facts not your beliefs or views. The exception is where the person is giving evidence as an expert; for instance, a psychologist or licensed valuer.
Where possible you should avoid referring to facts that are based on information received from others (known as hearsay evidence). There are, however, a number of exceptions to the hearsay rule. If you need to rely on hearsay evidence in your affidavit, get legal advice to see whether it would be admissible in court.
You should not refer to anything said or documents produced in connection with an attempt to negotiate a settlement of your dispute, as these are not admissible as evidence in Court. There are some exceptions and if you want to refer to these communications you should read section 131 of the Evidence Act 1995 (Cth). If you are unsure about what can and cannot be included in your affidavit, you should seek legal advice.
If you refer to a document in your affidavit, you must attach a copy of it to the back of your affidavit (known as an annexure). Examples of an annexure are a contract of sale or a child’s school report. If there is more than one annexure, you need to refer to each one by a number or letter; for example, Annexure 1 or Annexure A. You also need to number the annexures consecutively, that is, from the first page of the first annexure to the last page of the last annexure.
Each annexure must have a statement signed by the authorised person identifying the annexure as the document referred to in the affidavit. The wording of the statement is:
This is the document referred to as Annexure [insert reference number] in the affidavit of [insert deponent’s name], sworn/affirmed at [insert place] on [insert date] before me [authorised person to sign and provide name and qualification].
The statement must be signed at the same time as the affidavit and by the same authorised person.
The person making an affidavit (the deponent) must sign the bottom of each page in the presence of an authorised person, such as a lawyer or Justice of the Peace. On the last page of the affidavit the following details must be set out (known as a jurat):
the full name of the person making the affidavit, and their signature
whether the affidavit is sworn or affirmed
the day and place the person signs the affidavit, and
the full name and occupation of the authorised person, and their signature.
If any alterations (such as corrections, cross-outs or additions) are made to the affidavit, the person making the affidavit and the witness must initial each alteration.
Sample of a general Affidavit