What Is An Affidavit? (2020 Update)
Affidavits are one of the most common documents you will come across in the legal system. Read about what they are in this guide.
An affidavit sets out a sworn version of events, to support the argument of one party in litigation. Although it conveys a version of events, it also usually has evidence attached to it.
Legal disputes between two parties inevitably involve a disagreement of some form. When you commence proceedings, you need to also provide evidence. An affidavit provides not only context, but also supporting evidence that becomes crucial during the trial stage.
What it does
An affidavit is a written statement of evidence which sets out the facts of your case to the Court. Your lawyer usually drafts your affidavit after you have given them all the relevant details. You have to ‘swear’ your affidavit, which means that it is legally binding and has to be truthful. It states what the issues of your case are and describes how they came to be that way. This document should be set out in chronologically numbered paragraphs.
You will need to swear or affirm your affidavit in front of an authorised witness so that it is legally tenable. A witness can be a solicitor, barrister, or Justice of the Peace. The person who witnesses your affidavit must witness your signature and also sign the document themselves.
An affidavit should not contain opinions or bias by the individual making the statement. However, this can be a fine line to tread – as parties to the same dispute will usually have differing versions of the same event.
You cannot submit evidence which is scandalous, irrelevant or oppressive. If your affidavit contains any of these things, it may be deemed inadmissible. These may include assertions about someone’s perceived character and appearance. It also may be if it contains irrelevant details such as their socio-economic background, gender etc.
When making an affidavit, you should include only direct evidence that you personally witnessed or heard. An affidavit should only state facts that you personally heard or saw. It should not include any statements based on second-hand evidence, such as information they were told someone else saw or heard. This is known as ‘hearsay’. There are specific rules that deal with hearsay and can result in the evidence deemed inadmissible in Court.
Sworn or affirmed
When your lawyer has finished drafting your affidavit, you will have to swear or affirm it. If you choose to have your affidavit sworn, you are swearing an oath to tell the truth while holding the Bible, Quran, or other religious text.
Alternatively you can choose to affirm your affidavit if you do not have any religious beliefs. This will affirm that all the documents you have made are truthful. Either way, swearing or affirming your affidavit is an assertion that you are telling the truth.
You will need to provide evidence of the arguments you make in your affidavit. These are attached as an ‘annexure’ or an ‘exhibit’ (depending on the Court). An annexure or exhibit is required to have an accompanying statement signed by the witness. This serves to attest that the document is indeed what is being referred to in the affidavit.
Additionally, your annexure or exhibit must be numbered chronologically, i.e. Annexure ‘A’, Annexure ‘B’. Annexures are normally used for smaller affidavits, whilst an exhibit would be required if you intend to submit a longer-form affidavit with more evidence.
Joanna is in the midst of a family law dispute with her ex-husband, Neville. Joanna is asserting in her affidavit that Neville withdrew significant sums of money (totally $58,000 over 8 months) from their joint bank account and transferred it into his individual account. To evidence this, Joanna has to provide bank statements for the entire 8 month period showing the transfers. These will be considered an exhibit, as the statements are in excess of 100 pages.
After you have submitted your signed and witnessed affidavit to the Court, remember that the evidence you have submitted may be called again in Court. This may be so that you can testify in front of the judge and jury. Further, it is important that you are familiar with the facts you have tendered and checked that your assertions are accurate.
Jackie is the Content Manager at Lawpath and manages the content team. She has a Law/Arts (Politics) degree from Macquarie University and is a solicitor in NSW. She's interested in how technology can help shape the future legal landscape.