Sometimes, couples can be separated but continue to live under the same roof.
There may be times, such as when you file for divorce, that you will need to provide evidence that this has been the case. The main way to pressent evidence to the court is to file an affidavit.
What should you include in an affidavit?
Generally, an affidavit should not set out the opinion of the person making the affidavit; that is, it must be based on facts not your beliefs or views.
Where possible you should avoid referring to facts that are based on information received from others (known as hearsay evidence).
You should not include in your affidavit, what you think your spouse was feeling or thinking unless you have evidence of them telling you what they thought or felt at the time, such as a letter or email.
Unless a court orders otherwise, a child (under the age of 18 years) should not prepare an affidavit to support your case.
Any affidavit you file must be served on all parties. Read more about serving documents: Serving divorce papers: A quick how to guide
Formatting an affidavit
The affidavit must be divided into paragraphs. Each paragraph must deal with only one aspect of the subject matter. It is suggested that each paragraph contain no more than about 6 lines.
Each paragraph must be numbered.
Each paragraph should be confined to a distinct part of the subject matter.
The affidavit must be typed. Handwritten affidavits will be accepted only in circumstances of urgency, usually involving some immediate threat of harm to a child.
Text should be printed on only one side of white A4 paper.
Documents in support of your affidavit should be referenced as an annexure in the format required by the appropriate court (see below).
The address for service of the documents (the address the court can contact the deponent) must be included in the footer of page 1.
SAMPLE AFFIDAVIT (living separate under same roof)
Top of page
FILED IN: (Mark with X the court that applies)
FAMILY COURT OF AUSTRALIA
FAMILY COURT OF WESTERN AUSTRALIA
FEDERAL MAGISTATE’S COURT OF AUSTRALIA
REGISTRY: Enter court location
FILE NUMBER: If known
Parties to the matter:
Your Name (applicant/respondent)
Other party's name (applicant/respondent)
Filed on behalf of:
Full name: Your name
Name of deponent: Name of person making the affidavit
Date sworn/affirmed: ____/____/______ .
I, Your Name of your address and your occupation make oath and say, as follows:
Write a separate paragraph for each point, if they apply to you:
I am the applicant/respondent in the within matter and was born on Xday Xmonth, 19XX. I am XX years of age.
The applicant/respondent (OP) is other party’s name, born on Xday Xmonth, 19XX and is XX years of age.
OP and I met in Month of Year …. Explain briefly how you met.
We started dating regularly around Month of Year.
We started living together at address in Month of Year and .... for example, have been living together as husband and wife at various addresses since then. We currently reside at .... address.
Before we separated … explain what things were like … for example - we used to do many things together such as preparing meals, share household chores, sleep in the same bed and had a sexual relationship and we holidayed and socialised together.
While we were together in our relationship …. explain your financial arrangements … for example – we shared our finances by way of joint bank accounts and both making contributions to our activities, household expenses, buying groceries and general living expenses.
Before separating, explain your behaviour before separation - for example - we spent time and socialised with each other’s friends and relatives and they considered and referred to us as a couple.
We separated and began living separately under the same roof on or about Xday Xmonth, 19XX. I considered we had separated when …. explain why you say you separated on that date -for example, I said to OP words to the effect of "This relationship is over. From now on I will be living in the spare room until I can afford to move to another place."
I recall that OP acknowledged that we were separated when they …. Explain when and what they did or said that indicated to you that they acknowledged your separation in point 6.
We continued to live in the same home following separation because …. explain why you remained in the same home.
Our sexual relationship ended around Xmonth, 19XX.
We moved to separate beds on or about …. Xday Xmonth, 19XX. I slept … and OP slept ... .
After separation we managed our finances such that .... explan what happened with your finances? Did you separate your bank accounts, open a new private bank account, divert you salary from the joint account, start buying things like food separately?
Did you stop attending social outings together? If you kept going to some outings together, explain when and why you attended outings together.
What government agencies (e.g. Centrelink) were informed of your separation?
What conversations did you have about the fact that you were separated? For example, did you talk about how you would divide your property or what you were going to do about the children?
Any other changes to your daily life? Did you each start doing your own washing? Did you communicate by leaving notes for each other, rather than talking? Did you holiday separately? Did you start dating other people.
If you are still living under the same roof, what plans do you have to live separately? Have you and your spouse talked about living separately?
What living arrangements were made for any child of the marriage under 18 years during the time you were living under one roof?
Detail anything else that shows that the relationship had changed.
End of Affidavit
Federal Circuit Court
If you refer to a document in your affidavit, you must attach a copy of it to the back of your affidavit (known as an annexure). Examples of an annexure are a contract of sale or a child’s school report. If there is more than one annexure, you need to refer to each one by a number or letter; for example, Annexure 1 or Annexure A. You also need to number the annexures consecutively, that is, from the first page of the first annexure to the last page of the last annexure. Each annexure must have a statement signed by the authorised person identifying the annexure as the document referred to in the affidavit.
The wording of the statement is:
This is the document referred to as Annexure [insert reference number] in the affidavit of [insert deponent’s name], sworn/affirmed at [insert place] on [insert date] before me [authorised person to sign and provide name and qualification].
The statement must be signed at the same time as the affidavit and by the same authorised person.
A document that is to be used in conjunction with an affidavit and tendered in evidence in a court proceeding, must be identified in the affidavit but must not be attached to (or annexed to) the affidavit, or filed as an exhibit to the affidavit. There may be exceptions where court orders or the Rules provide otherwise (for example Family Law Rule 15.62 in relation to expert reports). The document/s referred to in the affidavit must be served with the affidavit on the other party/ies after filing and referenced in the disclosure list. The document/s must then be tendered in evidence at the court event when the relevant affidavit is relied upon or as required. See Family Law Rule 15.08. Source: Family Court of Australia.
Signing an affidavit
The person making an affidavit (the deponent) must sign the bottom of each page in the presence of an authorised person, such as a lawyer (as long as they have not participated in preparing the affidavit or in the proceedings in which the affidavit is intended to be used), or Justice of the Peace.
If you are overseas a Notary Public or Australian Diplomatic/Consulate Officer can witness the signature.
On the last page of the affidavit the following details must be set out (known as a jurat):
the full name of the person making the affidavit, and their signature
whether the affidavit is sworn or affirmed
the day and place the person signs the affidavit, and
the full name and occupation of the authorised person, and their signature.
If any alterations (such as corrections, cross-outs or additions) are made to the affidavit, the person making the affidavit and the witness must initial each alteration.
If you have decided to end your relationship, you should start to educate yourself. I know the overwhelming feelings of making these decisions and facing your new realities. My book, The First Steps through Separation and Divorce will guide you through the emotional and practical aspects you may need to address in the coming weeks, months and years.
Get a feel for what's covered: View the Table of Contents.
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The information in this article is general in nature and a sample only and should not be considered as legal advice. You should seek the advice of a registered professional who will be able to appropriately assess your specific circumstances before offering their expert opinion.