If you are required to make an affidavit in Australia, you will need to confirm that the content of the affidavit is true by signing it in front of a witness. This guide sets out everything you need to know about executing an affidavit.
What is an Affidavit?
An affidavit is a person’s statement in written form. Therefore, it is a way of presenting evidence in court proceedings that enables each party to see what each party plans to say at the hearing.
When is an Affidavit Required?
Affidavits are commonly required when people or companies are involved in court proceedings and each party needs to make a statement about their position on the issues in the case. However, the court may require affidavits at different stages of the proceedings to address different issues.
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Why Are Affidavits Important?
Affidavits are an important tool for presenting evidence in legal proceedings. They set out the facts of the case (as the person recalls them). Furthermore, they provide context about the various documents that the person submits as their evidence in the proceedings.
However, they must be prepared and executed properly. A failure to properly execute an affidavit may result in the court finding that the affidavit is inadmissible. Therefore, this means the person who made the affidavit can no longer rely on it.
Key Terms
Furthermore, it is important to understand some key terms.
| Term | Definition |
| Execution clause | A clause stating when and where the document is signed as well as the name of the witness. |
| Deponent | The person who is making (i.e. swearing or affirming) the affidavit. |
| Oath | A statement made by the person signing it promising that they are telling the truth in their affidavit. Furthermore, it references a God recognised by that person’s religion. |
| Affirmation | A non-religious declaration that the contents of the affidavit are true. An affirmation has the same legal effect as swearing an oath. |
| Witness | The person who witnesses the deponent signing the affidavit including any exhibits or annexures. In addition, they verify the identity and signature of the deponent. |
| Annexure / Exhibit | A document or bundle of documents that are referred to in the affidavit. Common examples of annexures or exhibits include:
|
Executing an Affidavit
To execute an affidavit means to review the contents of the affidavit and sign it in front of a witness. To sign an affidavit is to say that you declare its contents to be a true account of your understanding of the facts and issues set out within the affidavit.
Signing Your Affidavit in Front of an Eligible Witness
Once you have reviewed your affidavit, including the annexures or exhibits, you will need to take your affidavit (along with any annexures or exhibits) to sign it in front of a witness.
Who is an Eligible Witness?
An affidavit can be witnessed by a:
- lawyer;
- justice of the peace; or
- notary public (a public officer who has the authority to perform certain functions such as witnessing documents).
However, if you do not live in Australia or you are currently overseas or interstate and need to make an affidavit, you can have your affidavit witnessed before:
- a notary public;
- an Australian or British Consular Officer; or
- any other person who has authority to administer an oath in the relevant country. This will vary between countries.
Verifying your identity
Firstly, a witness must:
- have known you for at least 12 months; or
- confirm your identity by seeing an original or certified copy of an acceptable identification document.
Acceptable documents include a:
- drivers licence;
- Australian or foreign passport that has a photograph and signature;
- birth certificate;
- Australian citizenship certificate, or a foreign citizenship certificate translated into English;
- Medicare card, pensioner concession card, Department of Veteran’s Affairs card, or other government-issued entitlement cards;
- credit card or statement of account from a bank, building society or credit union;
- electoral enrolment card; or
- student identity card from an educational institution.
Furthermore, to properly check a person’s identity, the witness must see the face of the person. This requires the person having their identity checked to remove any face coverings. However, if a person has a legitimate medical reason concerning why they cannot remove a face covering, this amounts to a ‘special justification’. If a special justification exists, the witness must declare this in the execution clause on the affidavit. However, it is important to note that religious or cultural beliefs will not constitute a ‘special justification’. Therefore, where a legitimate medical reason exists, it is recommended that a medical certificate is presented to the witness.
Checklist
| What the person signing the affidavit needs to do | What the witness needs to do |
| Firstly, sign every page of the affidavit, including the execution clause, and initial any alterations made to the affidavit if required. | Firstly, sign every page of the affidavit, including the execution clause, and initial any alterations made to the affidavit if required. |
| Secondly, write your full name, address, occupation, and the date at the start of your affidavit (and make sure your full name is also reflected on the cover sheet) | Secondly, sight and sign the annexures (or exhibit cover sheet) with a statement such as “this is Annexure A referred to in the Affidavit of Jane Doe affirmed/sworn before me at Surry Hills, Sydney on 1 July 2018.” This statement must appear on every annexure. |
| Thirdly, provide copies of all annexures or exhibits referred to in your affidavit to the witness. | Thirdly, fill out every part of the execution clause. That is, when (the date), where (the signing location) and who you are (your full name and address). |
| Finally, provide the original or a certified copy of your identification document to the witness. | Finally, verify the deponent’s identity, and complete and sign the identity verification statement in the execution clause. |
Key Takeaways
Overall, if you need to execute an affidavit in Australia, it is important to:
- firstly, understand key legal terms;
- secondly, find an eligible witness;
- thirdly, verify your identity; and
- finally, sign the document correctly.
In conclusion, if you are unsure about any of the requirements set out in this guide, you can contact LegalVision’s litigation lawyers on 1300 544 755 or fill out the form on this page.
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