If you want to be on the right side of the law during the processing of prosecuting cases in the law courts in Australia, then you have to be aware of the concepts that are involved in affidavit. You are going to learn a lot through what we have below because it contains all the technical details that are involved in affidavit. This is a collector’s item for all.
How do I write an affidavit?
Preparing an affidavit is pretty easy if you know the guidelines. You have to begin by inserting a caption for the affidavit which will be in line with the central theme of what you are pursuing. You will need to give a title to the affidavit which will be placed centrally just below your caption. You can now give the address which should be left-aligned.
You will move to the section called the commencement where you are going to state the name of the person that is making the affidavit. You are expected to include all personal information in this section. You are now going to move into the business properly where you are expected to write the statement of the affidavit. You must write a statement of truth here that will be numbered. Spell out the oath been taken by the affiant and move on to create a signature block. You are to include a court clerk or notary signature block here.
What is an affidavit in Australia?
An affidavit in Australia is a written statement that is prepared by a party or witness. This is the same way that the fact of a case is presented in the court of law in Australia. The affidavit must be served on all the parties involved for it to be effective. The affidavit should be filed with an interim application. If it takes place in the family court, there is a blank affidavit form that can be used by the applicants as well as the respondents.
If you are pursuing the case in the federal circuit court, then you need to file an affidavit for both interim and final orders with your affidavit when such is directed by the court. The affidavit should be typed in the family court; it may be typed or printed clearly in the federal circuit court. The contents of such an affidavit should be divided into numbered paragraphs.
What is an affidavit form?
In the law courts, an affidavit is the written statement of facts that is done under oath. This is the means of providing the evidence that will be used in the law courts to carry out the dispensation of justice. The law enforcement agencies and authorities use the content of the affidavit to prosecute the case in the court of law.
The information needed to be outsourced on the contents of the law norms as well as the documents cannot be submitted directly to the law courts. This is the reason why a technical way of carrying out the issue in a way that will not truncate the course of law is carried out through what is now known as the affidavit form. It is, therefore, the summation of the documents that are difficult to the summit at the law courts which are presented as in the affidavit form
What documents are required for affidavit?
When you want to pursue a case in the court of law of the land, you will be made to swear through a written affidavit that what you are saying is the whole truth and nothing but the truth. The documents here will be related to the kind of case that you are pursuing. For instance, if it a case that as to do with immigrant laws, then the following document will be mandatory:
After paying the mandatory fees required, you are expected to submit the following documents:
The affidavit of support belonging to the petitioner
All the supporting financial documents
The applicants DS-260
All the civil documents that belonged to the applicant
This sums up all the documents that will be required if the applicant is an immigrant wanting to pursue a stay in a country outside his country of origin.
Parts / Components of an affidavit in Australia
When we are talking about the elements of affidavit generally; it can be divided into three core areas. The signature of the affiant is a must-have in any affidavit for it to be deemed legal in the eyes of the law. The second component that is worthy of mention is the section that deals with the oath. It is the representation of the facts as sworn to by the affiant.
The third equally important side to the affidavit is the attestation by the officer who is authorized to administer the oath. This oath is considered legal if it was sworn to in the presence of the officer. It also includes a caption /title, the jurat as well as the body of the instrument. If no oath is administered, then the components of the affidavit become none and void. If the facts as presented are outside the knowledge of the affiant, the components will not stand before the court of law.
Uses of the affidavit
There are several types of cases that require an affidavit. If you received a legal document, an affidavit can be used as a seal of evidence that you received the document. If someone is a debtor and the person is dead; an affidavit is what is needed to notify the creditor of the death of the debtor. It can be used when you want to verify residency. If you want to verify issues regarding residency, an affidavit can be used to get that done.
If you want to make a formal statement as a witness in a court hearing, you can use an affidavit to make such a claim. Affidavits can be in the form of any of the following: Small estate affidavits; Support affidavits; personal information theft affidavit; affidavit of death; Small estate affidavits; affidavit of residence; financial affidavits….
Why do we need an affidavit?
An affidavit is needed because of the legal status that it confers on some dealings. It is used to show primarily that some dealings are the truth and nothing short of the truth. When you have a court case, an attorney can use your affidavit to represent your position in court without your physical appearance in court which will go all the way to save you time and money in a variety of legal proceedings. In situations such as estate planning matters, you are going to require an affidavit as well as in family law issues. Without the affidavit in such instances, other legal instruments will not be valid; if that has to be proved in the court, it will be a tasking effort. The usefulness of affidavits goes beyond the courtrooms; insurance companies and banks and several other entities will need it as part of their official functions.
What are the types of the affidavit?
Financial affidavits- This is used in matters relating to family law, it is used in all cases that involve issues bothering on divorce and the sharing of assets and liabilities.
Small estate affidavits- A small estate affidavit is required where the husband of a woman passes on without leaving a will which will determine the way his property will be shared. The affidavit will make the affiant swear that the responsibility of the management of the estate rests on the person.
Affidavit of death- It is used to notify the public legally that a company or other assets that the person owned ceased to exist.
Support affidavits- Used to show that a person has all the requirements to enter a country as an alien
Affidavit of heirship- It Confirms legal rights to the assets of a deceased relative
Personal information theft affidavit- Used when an identity is stolen or compromised
Affidavit of residence- Used in family law and other types of cases.
What is an example of an affidavit?
There are numerous types of cases out there that require an affidavit. You have to include all the facts as it is in written format and sworn on oath before an affidavit can be tendered in court to represent the opinion of the affiant. The following represents the examples of affidavits that are in vogue today:
Affidavit that is used to state that you received a legal document
The affidavit used to notify a creditor or a third party on the death of a debtor
The affidavit used to verify changes in identity for newly married couples or in cases where a married female is divorced and wants to make a change of name effected
The affidavit used to make formal statements as a witness in court
The affidavit used to claim assets or property
The affidavit used to confirm a stolen identity.
Affidavit that is used to confirm residency
The affidavit used to claim assets or property.
Who writes an affidavit?
Any individual can write an affidavit in as much as such an individual have the mental capacity to understand the implications of the oath they are been written. The contents of the affidavit will be the personal knowledge of the individual that is making the oath. If an individual that is making an affidavit does not have knowledge of some facts and fails to include such in the oath, e cannot be penalized for such an error.
Included in the affidavit can be a personal opinion rather than the facts of the matter. The affidavit can be written on behalf of somebody else. It happens in cases where you are the relative of a dependant who is seriously mentally ill at the time of writing the affidavit. However, for the affidavit to be legit, it must be written in the presence of a solicitor; in the absence of that, it will not be accepted under the law.
Difference between an affidavit and a declaration
Declarations and affidavits are both written by individuals who have knowledge of the subject matter in question and both are sworn declarations. The declarations are done under the penalty of the jury when affidavits are sworn before a notary. Both terms are used interchangeably in some quarters but there is a line of difference between the two.
Affidavits must be signed before a jury while that is not the case with declarations. It can be said in a layman’s language that affidavit is the stronger of the two. The affidavit is a legal document that sets out the facts of the matter while a declaration can be described as a relaxed form of affidavit that is written under a very cool circumstance. The affidavit is very legally strong and binding when it is taken under oath, the same cannot be said of declarations; hence the difference between the two legal terms.
Can the affidavit be used as evidence?
The answer to this is a clear yes. This is one of the essences of an affidavit in the first place. In as much as it is written in the presence of a solicitor and legally signed, it becomes a binding document that can be used in the law courts to represent the candid opinion of the affiant. It is done to reduce the stress of the affiant; without his presence in court, the affidavit will be used as evidence to speak on behalf of the affiant since the document will be legally accepted as binding anywhere under the sun where justice is been administered in the law courts.
So if your affidavit is legal, then you can give such to your counsel and he will use it to prosecute your case in court in your absence thereby saving you the stress of making a physical appearance in court in person.
Does affidavit expire?
There is no validity period on an affidavit at least for now under the ambits of the law. In as much as the affidavit is well written, it is wrong to assume that the validity will last for only x period in time because there is nothing of such at under the law. So if somebody beside you is talking about the validity of an affidavit that is dully taken and signed before a solicitor, it is a statement that is far from reality.
When you swear to an affidavit and it is properly done, you can be sure that it will last you forever because there is no expiry date on such. Your affidavit will never expire; whenever you present that before the law courts, it will retain its legal status before the laws of the land. You can present it at your convenience with confidence.
Can an affidavit be challenged?
Not every affidavit out there is properly carried out according to the dictates of the law. If you observed that an application is defective, then the fertile ground to challenge it if it is used against you in the court has been provided on a platter of the diamond. You can challenge a defective affidavit in court-matter of fact.
In instances where you are facing a foreclosure of your building, you can buy time by challenging the affidavit if you are sure there is a defect in it. On the bases of flaws in the affidavit, you can challenge it and point out the errors which will knock off the power conferred on the affidavit in the first instance and you will get the relief that you so much sought for before the court of law. If the affidavit is properly done with correct facts and duly signed, then you cannot challenge that under the court of law.
What makes an affidavit legal?
First and foremost, the contents of the affidavit should be one that is written by someone that has knowledge of the subject matter. It is important that all the issues addressed in the content of the affidavit are based on first-person experiences and nothing less. If the facts contained in the contents of the affidavit are the true reflection of thing sin practical reality, then the affidavit would have passed the preliminary stage of the test.
It should be written under the supervision of a jury who will monitor the contents word for word and upon completion of the contents will then append the signature on the affidavit as a mark of legal seal on the document. If the above processes were seen to have been observed to the letter, then one can put a legal seal on the affidavit as binding before the law anywhere in the world.
Is an affidavit admissible in court?
The main objective of an affidavit is to present it before the law courts when there are issues that require the input of the law to be settled between individuals; corporations or the countries. Extra care is usually taken to present the contents of the affidavit in an orderly manner and in a way that will tell the story even if the affiant is not available in court. The coming of affidavits into the judicial system of governance has made things pretty easy when it comes to the dispensation of justice at the law courts because with it; affiants can be dully represented in court through their affidavit without their physical presence in court when their case is been heard.
The affidavit as it stands today is a legal tender that is admissible in the law courts and has gone a long way to reducing some of the bottlenecks in the dispensation of justice.
What is the penalty for a false affidavit?
Anyone that makes a false statement under oath is guilty of perjury. Lying when making the contents of your document in the affidavit can be likened to making a false statement in the court of law before a jury. This is a crime under the laws of any country and the penalty differs according to the state in which the crime is committed. In some countries, when a person is convicted for perjury under the federal laws, he will likely spend five of the productive years behind bars. It may attract the option of a fine or the sentence may run concurrently.
The states have their own laws on perjury and in most cases, it is regarded as a felony that carries a possible prison term. The penalty for such offense differs from one state to the other. In a criminal case, the affiant might get more severe punishment from the judge.
Laws that govern affidavit
There are no restrictions on the age of the affiant in as much as you are 18years and above. However, you must be sound in mind and realize the import of the document that you are signing before appending your signature to any of the documents. If a statement is signed that is known to be false by anybody, there is the risk of perjury which will attract severe sanctions up to jail terms.
Minors can sign an affidavit in family matters that turn to legal issues in as much as the minor is of age and he understands the implications of the document that he is signing into law. Make sure you read through the lines very well before you sign the affidavit into law because any error will attract severe sanctions. It is not out of place, therefore, to take extra caution to avoid the inevitable.
How much do affidavits cost in Australia?
If you are the one writing the affidavit on your own, then you will not be required to pay a dime for the affidavit. If the affidavit is to be used within Australia, you can be assured that you are going to get the process free of charge. However, if the affidavit is one that will be taken outside the shores of Australia, then you will be charged a fee.
If you want to involve a hire to help you in writing the content of the affidavit; then you have to be prepared to pay some charges. What you are paying is the professional fees of the person that helped you in preparing the affidavit. So irrespective of whether you are going to use the affidavit either within or without the shores of Australia in this case of a second party writing the brief on your behalf, you are expected to pay a fee.
Steps for getting an affidavit in Australia
The first preliminary step is to get an affidavit form. With the passion of the form, you have to look for an authorized affidavit taker such as a court registrar or Justice of Peace who represents an Australian legal practitioner. You will then sign the affidavit and attach your written documents. Next, you will be required to take an oath or make an affirmation as the case might be.
You will now go on to complete the jurat and the process will be concluded. It will not cost you a dime if the affidavit is to use within Australia but where it is intended to be used beyond the borders of Australia, you are going to be charged a fee. If you involve an interpreter, then you are going to pay a fee as dictated by the interpreter.
The process is easy and smooth sailing; only ensure that the contents are the truth and nothing but the truth to avoid the big issues.
Affidavit as a concept has been disclosed above. All that you need to get the best out of affidavit has been disclosed above. Go through the template above and you will get to know all that are necessary about affidavit. An affidavit will not be legal if it was not done in the presence of a jury. Affidavits in Australia is free if it will be used in Australia and will attract a fee is it is to be used out Australia.