If you have ever come across any kind of legal procedure in your life – whether watching a show on TV about lawyers/law and order or going through a legal battle in real life – “affidavit” is quite a familiar term. However, unless you actually have filed for one, it is highly unlikely that you know the details of the complex procedure for it. If you do have to experience one though, not to worry, we have explained everything that you need to know about notarizing an affidavit to be admitted in a court of law in this article.
What is an affidavit
An affidavit is a written document that a party or a witness presents in court proceedings as a piece of evidence. Typically, it is filed in the situation of a dispute like a divorce, property dispute, debt issues, power of attorney complications, loss of a vital legal document; or if specifically ordered by the court. Signing an affidavit is equivalent to swearing under oath in a courtroom declaring the statements in that document to be true to the best of one’s knowledge. An affidavit is used along with witness statements to prove the truthfulness of a certain statement in court.
By Australian law, evidence in a courtroom is supported in the form of affidavit alone, instead of giving in-person declarations, with very rare exceptions. An affidavit filed in the court to support a case must also be served on all parties. Restricting the procedure of an affidavit by these rules allows a case to run more quickly and efficiently since all parties are aware of the evidence to be showcased in the court and can prepare accordingly.
Things to know while getting notary attestation of an affidavit
Notary attestation of an affidavit requires an authorised witness to declare your affidavit as valid. In the presence of all the parties involved in the case, this witness validates the identity of the signatories of an affidavit, how willing they are to sign the document, their legal capacity of signing the document including physical and mental illnesses, and their awareness of the contents of the document; as well as how lawful the document itself is.
Now, in order for an unbiased witness to lawfully attest your affidavit as well as for it to be considered as valid in the court in the form of evidence in your case, there are certain guidelines it should adhere to.
Structure of a legitimate affidavit
- The affidavit should be divided into numbered paragraphs, each discussing only one aspect of the subject matter.
- Only typed affidavits are admissible in court with rare exceptions regarding very special cases.
- The person making an affidavit needs to sign the bottom of each page in the presence of the authorised witness.
- The following details must be included on the last page of the affidavit:
- the full name and signature of the person filing for the affidavit,
- whether the affidavit is sworn (on a religious or spiritual belief, usually using a religious text) or affirmed (a non-religious swear),
- the date and place of the signing,
- the full name and occupation of the authorised witness, and his/her signature and seal.
- Even though the length of your affidavit depends on the complexity of your case, there is a limit which your lawyer should mention to you.
- In the case that the person filing for the affidavit is illiterate, blind, or incapable of signing because of a physical challenge; it is the job of the authorised witness to clearly mention the following at the end of the affidavit:
- the affidavit was read to the person;
- To the best of knowledge of the witness, the person making the affidavit seemed to understand the affidavit; and
- for a person who is physically incapable of signing, that the person displayed affirmation that the contents of their affidavit were true.
- Since Australian courts will only admit an affidavit in the national language, i.e., English, if the maker of the affidavit does not have an adequate command of the same, the document and the oath should be translated to the person in a language that he/she understands, and this fact must be certified in the affidavit itself by the translator.
- If there is an additional document that you want to be included in the evidence file, you can attach it to the affidavit along with referring to the same in the notary attested document. However, there is a limit to the maximum number of pages of your affidavit as well as the number of attachments, and your affidavit may not be accepted for filing if you go overboard. So talk to your lawyer about the details beforehand.
Contents of an affidavit
When you get a notary attested document as an affidavit, everything written in it is believed to be true to your knowledge. Having said that, the statements should be facts; and certainly should not be based on your opinions, views, beliefs, or even someone else’s recount of an event (hearsay evidence) which does not include adequate relevant data. Your affidavit should contain the following:
- You should include all the facts that are unmistakeably relevant to your case, in an unambiguous and proper manner; or else you may risk important facts be stricken out by the judicial officer.
- If you would like the court to make certain orders, you should make your demands very clear for the judge’s understanding, and attach relevant applications, if any.
- All the evidence that you want to refer to for your case should definitely be added to the affidavit.
- Anything stated in verbal or written form in an attempt to negotiate a settlement of your dispute should not be cited in your affidavit, as these are not admissible as evidence in a court.
- If you feel certain evidence from a witness (not an applicant or respondent) is relevant to and is important for your case, you will need to file a separate affidavit on behalf of him/her.
Who can turn your affidavit into a notary attested document
In order to be admissible in court, an affidavit needs to be sworn or affirmed before an authorised witness and the person should put his/her signature and seal on it. When you are inside Australia, you can get a notary attestation for your affidavit by someone from any one of the following professions:
- a Justice of the Peace,
- an unbiased lawyer,
- a notary service professional, viz., a notary public,
- a judge or magistrate,
- a person authorised to administer oaths or affirmations for the purpose of court proceedings.
If you are overseas, you can have any of the following people to witness your affidavit:
- an Australian diplomatic officer or an Australian consular officer;
- a judge, magistrate, or justice of the peace from the place you are visiting;
- a notary public there;
- a person who can administer an oath to another person under the law of the place you are in.
However, in either scenario, it is important for the witness to be in full psychological stability and fully aware of the documents being signed. He/she also should pose no conflict of interest with the signatories. A conflict of interest may arise in the following circumstances:
- When the witness has any relation to the parties in question, that is, if he/she is a friend, relative, or family member of the parties in question.
- If any financial or personal gain is involved.
- If the witness, or any family member of him/her, or anyone in connection to the person is mentioned in the document.
- If the witness is under duress.
A conflict of interest essentially declares the witness biased towards the signing of the documents. Hence, in this case, his/her authentication is considered void in a court of law and the document is branded invalid. So this kind of situation must be avoided at all costs.
We hope this guide was beneficial to you for getting an idea of what an affidavit is and the procedures for filing and notary attesting the same. Even so, it is a complicated operation and a number of things can go wrong if you are not aware of the particulars of a court procedure. Therefore, it is important that you contact professional and experienced notary services before you proceed with such a tour de force.