Affidavits and Statutory Declarations

An affidavit is a formal sworn statement of fact, signed by the declarant (who is called the affiant) 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.

One use of affidavits is to allow evidence to be gathered from witnesses or participants that may not be available to testify in person before the court.

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In American jurisprudence, under the rules for hearsay, admission of an unsupported affidavit as evidence is unusual (especially if the affiant is not available for cross-examination) with regard to material facts which may be dispositive of the matter at bar. Affidavits from persons who are dead or otherwise incapacitated, or who cannot be located or made to appear may be accepted by the court, but usually only in the presence of corroborating evidence. An affidavit which reflected a better grasp of the facts close in time to the actual events may be used to refresh a witness' recollection. Materials used to refresh recollection are admissible as evidence. If the affiant is a party in the case, the affiant's opponent may be successful in having the affidavit admitted as evidence, as statements by a party-opponent are not considered hearsay.

Some types of motions will not be accepted by the court unless accompanied by an independent sworn statement or other evidence, in support of the need for the motion. In such a case, a court will accept an affidavit from the filing attorney in support of the motion, as certain assumptions are made, to wit: The affidavit in place of sworn testimony promotes judicial economy. The lawyer is an officer of the court and knows that a false swearing by him, if found out, could be grounds for severe penalty up to and including disbarment. The lawyer if called upon would be able to present independent and more detailed evidence to prove the facts set forth in his affidavit.

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An affidavit is the written equivalent of giving oral evidence under oath by the "deponent", who is the person who makes the affidavit, as opposed to the commissioner who administers the oath. Hearsay evidence is allowed as long as the source of the deponent's information is identified, and the deponent takes an oath that he/she believes the evidence is true. Before completing a statutory declaration or taking an affidavit, the Administrator must advise the participant or applicant of his/her authority as a commissioner for taking affidavits.

If a deponent chooses to swear an oath, the deponent shall be asked: "Do you solemnly swear that this is your true affidavit so help you God?" An affirmation is used where the applicant or participant, for religious or other reasons, will not swear an oath. In the latter case, the following question shall be used: "Do you solemnly affirm that this is your true affidavit?". It is not necessary that the deponent hold a religious book, or raise his/her hand to undertake an oath. The Administrator, as commissioner, is not required to satisfy herself/himself of the truth of the facts asserted other than in the administration of the oath.

However, the Administrator is required to verify all information pertaining to assistance. Affidavits should be used only as a last resort when regular means of verification cannot be used.

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Affidavits are made by writing "I (state full name) of (insert address) on this date (date in words) make oath and say as follows...". After this has been written, the facts to be sworn are listed, in prose or in bullet points. The document is then taken to a commissioner for oaths (most solicitors are also commissioners for oaths). They will then ask you to swear on a holy book particular to your faith (The New Testament, the Torah, the Qur'an, etc) and ask you to verify what has been stated.

An Affidavit is equivalent to sworn testimony.

Statutory declarations can be used as a method of legally changing one's name.

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Australian law defines a statutory declaration as a written statement declared to be true in the presence of an authorised witness. The Statutory Declarations Act 1959 governs the use of statutory declarations in matters involving the law of the Australian Commonwealth, Australian Capital Territory, and other territories but not including the Northern Territory.

Any person within the jurisdiction of this law may make a statutory declaration in relation to any matter. The declaration may be used in connection with matters of law, including judicial proceedings, but what weight is given to the declaration is a matter for the judge to decide.

Statutory declarations must be made in a prescribed form and witnessed by a person as specified in the Statutory Declarations Regulations (1993). Prescribed witnesses include legal and medical practitioners, Justices of the Peace, notary publics, police officers, and certain other Commonwealth employees.

Intentionally making a false statement as a statutory declaration is a crime equivalent to perjury, and punishable by fines and/or a prison sentence of up to 4 years.

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What is the difference between a statutory declaration and an affidavit?

An affidavit is a document which is used to give evidence in court proceedings. A statutory declaration is a document which is used to give evidence in most other circumstances.

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More Information

Yes.

When you make a statutory declaration, you are declaring that the statements in it are true. If you intentionally make a false statement in a statutory declaration, you could be charged with an offense and, if convicted, you could be fined or jailed, or both.

In Australia, under section 11 of the Statutory Declarations Act 1959, the penalty for making a false statement in a statutory declaration is 4 years imprisonment.

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