What exactly is an affidavit?
An affidavit is a written statement confirmed by oath or affirmation that is used as evidence in court. Stemming from Medieval Latin of the mid-16th century, affidavit literally translates to ‘he has stated on oath’.
In family law proceedings, the person who is making the affidavit is known as the ‘deponent’. This person could be the Applicant, the Respondent, a witness, or an expert witness in the proceedings.
What is included in an affidavit?
Generally, the deponent can only give evidence that they have experienced first-hand. This means deposing to evidence they have either seen, heard, smelt, felt, or tasted.
Another important consideration regarding affidavits and presenting evidence in written form is relevance. Only evidence that is relevant to the matter before the court is to be included in an affidavit. Anything beyond this could result in the court striking out the irrelevant parts of the affidavit.
What isn’t included in an affidavit?
Affidavits are based on facts, not views, opinions, or beliefs. This type of evidence, known as ‘opinion evidence’ is generally only admissible when the person giving their opinion is qualified to do so, for example, a psychologist.
Another type of evidence known as ‘hearsay evidence’ should also be avoided where possible. Hearsay evidence manifests when the deponent deposes to facts that are based on information they have received from another person. There are limited circumstances where this type of evidence is admissible in family law proceedings, however the rules are strict in this regard.
The role of annexures
Where the deponent refers to a particular document in their affidavit, a copy of that document must be attached to the affidavit. This is known as an annexure. These documents support the evidence as set out in the affidavit, however only those pages of the document that are relevant to an issue in dispute should be annexed.
All affidavit’s need to be signed by the deponent in the presence of a qualified witness, such as a lawyer, Justice of the Peace, or Commissioner for Declarations. The deponent and witness need to sign the bottom of each page, as well as the jurat on the last page of the affidavit. The jurat is a statement that sets out when, where, and before whom the affidavit was sworn or affirmed.