In Short
- Your spouse can legally witness your signature but this may lead to questions about impartiality.
- Spousal witnessing is best avoided to prevent disputes over document validity.
- Choose an independent third party to avoid potential legal complications.
Tips for Businesses
Avoid having your spouse witness legal documents to minimise risks of disputes and challenges. Using an impartial third party as a witness ensures neutrality and reduces the likelihood of legal issues if the document’s validity is questioned in the future.
Legal documents like contracts, deeds, affidavits, and statutory declarations must be signed while a witness is present. The purpose of having a witness is to minimise the risk of people fraudulently entering into agreements and to authenticate the document. For example, if there is any question regarding the signatory’s identity, the witness can confirm that the correct party has signed the agreement and no fraud has occurred. If you are signing a legal document and require a witness for your signature, you may consider asking your spouse or partner to be your witness. This article addresses the requirements of a witness and whether or not such an arrangement is suitable.
Who Can Be a Witness?
For general documents, a witness can be anyone who:
- is 18 years old or older;
- knows the person whose signature they are witnessing for at least one year or has taken reasonable steps to verify their identity using a primary identification document such as a driver’s licence, passport or proof of age card;
- is of sound mind and can witness the document;
- if the document is a trust deed, is not a beneficiary of the trust, meaning they are not entitled to any benefits arising from the trust; and
- is not a party to the document and has no financial interest in it.
When considering whether your spouse can be a witness, it is important to look beyond the basic legal requirements. While your spouse may meet the age and capacity criteria, their close relationship with you can raise questions about impartiality. The final requirement, especially, often excludes spouses. Generally, spouses and partners likely receive a financial benefit from any transaction their spouse or partner enters. Therefore, they do not meet this requirement. In legal matters, people often value the appearance of neutrality as much as actual neutrality.
State and Territory Requirements
Some documents, such as affidavits and statutory declarations, only allow a specific list of people to be witnesses to the document. The person must be an ‘authorised witness’ to witness these documents. Authorised witness requirements differ in each state, territory, and the Commonwealth. Usually, an authorised witness may be a:
- solicitor or barrister;
- Justice of the Peace;
- notary Public; and
- senior officer of the court.
Potential Risks of Spousal Witnessing
Having your spouse witness your signature may seem convenient, but it can pose several risks. Firstly, it may cause others to question the document’s validity if someone contests it. An opposing party might argue that your spouse was under undue influence or had a vested interest in the signed document. Secondly, in cases where the document relates to family matters, such as a will or property transfer, having your spouse as a witness could complicate matters if your relationship status changes. For instance, in a divorce scenario, someone might challenge the validity of a document witnessed by your ex-spouse.
Lastly, some legal processes, particularly those involving court proceedings, might require you to take extra steps to verify the document’s authenticity if a spouse witnessed it. This could lead to delays and additional legal costs. You should generally have an independent third party witness your signature to avoid potential complications.
Authorised Witnesses for Each State and Territory
| State/Territory | Affidavits | Statutory Declarations |
| New South Wales | Justice of the Peace, legal practitioner or notary public. | Justice of the Peace, notary public, court commissioner for taking affidavits. Additionally, you may utilise a legal practitioner with a current practising certificate or any person authorised to administer an oath. |
| Queensland | Justice of the Peace, commissioner for declarations or legal practitioner. | Justice of the Peace, Commission for Declarations, a legal practitioner, notary public or a conveyancer (note: conveyancers may not witness statutory declarations by video). |
| Victoria | The authorised witness list for Victorian affidavits can be found on the approved list. | The authorised witness list for Victorian statutory declarations can be found on the approved list. |
| South Australia | Commission for taking affidavits in the Supreme Court, a Justice of the Peace, a police officer, other than a police officer who is a probationary constable. Additionally, they may be a notary public or any other person empowered, authorised or permitted by or under any Act or rules of a court or tribunal to take affidavits. | The authorised witness list for South Australian statutory declarations can be found on the approved list. |
| Western Australia | Justice of the peace or experienced legal practitioner who has not participated in preparing the affidavit or in the proceedings in which the affidavit is intended to be used. Additionally, they may be a notary public, court registrar, clerk, or mining registrar. | The authorised witness list for Western Australian statutory declarations can be found on the approved list. |
| Northern Territory | Commissioner for oaths, Justice of the Peace, a lawyer with a current practising certificate or a police officer. | Any person who is 18 years old or older. |
| Australian Capital Territory | Justice of the Peace, a legal practitioner or a notary public. | The person must be on the list of approved witnesses, have a connection with Australia, orbe a notary public. |
| Tasmania | Justice of the peace, legal practitioner or a police officer empowered by statute to administer oaths. Additionally, a commissioner for oaths or a notary public. | Individuals from the approved list can witness Tasmanian statutory declarations. |
| Commonwealth | Legal practitioner, a Justice of the Peace, notary public or an Australian Diplomatic/Consulate Officer (if you are overseas). | The person must be on the list of approved witnesses and have a connection with Australia orbe a notary public. |
Thus, you can have a family member witness a general document, an affidavit or a statutory declaration. This includes your spouse or partner if they fulfil all the relevant criteria. No specific law currently prohibits a spouse or partner from witnessing a signature. However, it is also not uncommon for specific types of legal agreements to have specific witness requirement rules. For example, passports, wills and bank loans all have specific criteria to meet when witnessing such documents.
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Key Takeaways
In summary, your husband or wife can usually witness your signature. Despite this, avoiding having your spouse or partner witness your signature is best practice. Doing so may result in perceptions of bias. Additionally, it may diminish their credibility as witnesses and raise questions about the validity of your signature. In the worst-case scenario, a court may later question the enforceability of the legal document you signed. Instead, having a neutral, independent third party witness your signature is best to avoid potentially raising such issues.
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Frequently Asked Questions
Yes, if your spouse or partner will not receive a financial benefit and has no financial interest in the document, and satisfies the witness requirements for the document you are signing, they may witness your signature.
As an individual, it is important to have someone witness your signature to ensure that the document is valid and enforceable and to provide evidence that your signature is genuine.
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