An affidavit by another person, who is not your spouse, serves to confirm your story that you have lived separately under the same roof.
This person could be a family member, friend, neighbour or professional who is familiar with the circumstances of your relationship and is over 18.
What should the witness 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 their 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 another person was feeling or thinking unless you have evidence of them telling you what they thought or felt at the time, such as a one on one conversation, letter or email.
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.
Their affidavit should be formatted in the same way as the sample below:
(For independent witness to person living separately under the 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
File Number: Enter if existing
Parties to the matter:
Applicant’s name (Applicant)
Respondent’s Name (Respondent)
Filed on behalf of:
Full name:The person who requested they write the affidavit
Name of deponent: Name of person making the affidavit on your behalf
Date sworn/affirmed: ____/____/______ .
I, Witness Name of witness' address make oath and say, as follows:
(Write the paragraphs that apply to you)
I, witness’s name, born Xday Xmonth, 19XX, make this affidavit at the request of full name of person who requested affidavit, (“First Name”). I understand this affidavit will be used in court.
l have known First Name, and Name of other party (“OP”) for XXX years , because I was/am ….. for example – a neighbour and family friend.
Before I learned that the couple had separated, we would … explain the relationship – for example – often go out for dinner with our spouses and other friends, spend time with each other’s families at sporting events, social gatherings and camping holidays. During the time we spent together, I considered first name and OP to be a couple in a marriage/defacto relationship.
I recall becoming aware that the couple had separated on or about Xday Xmonth, 19XX when …. explain how witness knew of the separation – for example - First name came to my house at around XX:XXam/pm and told me that they had ended the relationship with OP and asked if they could stay the night as things were uncomfortable at home. During the evening first name told me they would have to stay in the house because they could not afford to move out but they would be moving to the spare room.
Since first name and OP separated, I have observed when I visited their home that … explain anything that reinforced the couple were living separately? For example - Did they see that you didn't share a bedroom with your spouse anymore? Did they see that your spouse's things were now in a different room?
I had a conversation with OP on or about Xday Xmonth, 19XX when ... for example ... they phoned me/I saw them at and event and they confirmed to me that they were still living under the same roof but had separated by saying words to the effect. “what did they say that confirmed they had separated…..”
Since the couple separated, they no longer … explain things that have changed - for example - did you stop going to social events and family holidays together? Did you start to spend more time with the witness as a single person. Did they notice that you no longer spoke to each other unless it was essential, shared household chores, finances, or, you say, stopped preparing meals and eating together?
Anything else that is evidence the two parties have lived separately under the same roof and have not been in a marriage relationship.
End of Affidavit
Attach supporting documents:
If you have any evidence that supports the information you have written in your affidavit, you should attach them to your affidavit. For example, an email, screenshot of a text or letter you sent your spouse about your separation and subsequent arrangements, a letter from Centrelink confirming your change of relationship status.
You should check the website of the court you are filing in to confirm how it requests supporting evidence to be filed.
Generally, to attach a document, for example a letter, you should write in the affidavit: "annexed to this affidavit and marked "A" is a copy of the letter ". You should then write "A" at the top of the front page of the letter you are attaching.
On the first page of each annexure, you should include the parties to the matter, the file number and the words,
“This is the annexure marked with the letter “A” referred to in the Affidavit of deponent’s name affirmed XDay of XMonth 20XX before me:
Below this phrase is where the authorised person should sign that they have witnessed.
The deponent must also sign each page of the document.
If you have more than one document, mark each one A, B, C, D etc. in the order that you refer to them in your affidavit and attach them in that order to the back of your affidavit.
Source: Family Court of Australia.
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.
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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.