An affidavit is a written statement of fact, sworn on oath or affirmed, which may be used as evidence in court.
The person who makes the affidavit is called the deponent. The deponent makes the affidavit by taking an oath or affirmation in the presence of an authorised affidavit witness that:
- they are the person named in the affidavit
- the contents of the affidavit are true
- the signature or mark on the document is theirs.
An affidavit is usually set out in the format required by the court in which it is to be lodged.
The ‘jurat’ (also described as the signing clause, witnessing clause or attesting clause) of an affidavit is a certificate on an affidavit showing when, by whom and before whom the affidavit was sworn or affirmed.
The onus is on the person who requires the affidavit to ensure it is in the correct format and all instructions and rules are adhered to.
How to witness an affidavit
The Code of Practice in relation to Affidavits (PDF, 119.9 KB) governs the process for witnessing a South Australian affidavit.
Before witnessing an affidavit, you should check the jurisdiction where the affidavit will be used and ensure you administer the relevant oath or affirmation for that jurisdiction.
From 1 January 2025 it will be mandatory under the Oaths Act 1936 for an authorised affidavit witness to verify that the person signing and swearing/affirming the affidavit is the person whose name is on the affidavit by sighting photo identification, eg a driver’s licence or passport.
The process for witnessing an affidavit for use in South Australia is explained in detail in the Justice of the Peace Handbook (PDF, 2.7 MB).
Although tailored towards Justices of the Peace (JPs), the Handbook contains useful step by step explanations of the steps for witnessing affidavits, and answers to frequently asked questions.
The Code of Practice in relation to affidavits provides for witnessing affidavits to occur online in real time, eg via Skype, Zoom, Microsoft Teams, Facetime or other audio-visual link.
The remote meeting between an authorised affidavit witness and a deponent must be conducted so that the authorised witness and the deponent are visible to each other and can hear each other while the deponent swears or affirms the contents of the affidavit and signs it.
You may need to ask the deponent to adjust their camera or device in order to do this.
You must be reasonably satisfied that the affidavit the deponent is signing is the same affidavit, or a copy of the affidavit, sworn or affirmed and signed.
You must endorse the affidavit, or the copy of the affidavit, with the statement—
This affidavit was witnessed remotely under the observation of the authorised person through an audio visual link and the requirements under the Oaths Act 1936 for taking affidavits by audio visual link were complied with.
If the deponent sends a signed copy of the affidavit electronically to you, or you have an electronic copy of the affidavit signed by the deponent, you may countersign the affidavit as soon as practicable after witnessing the signing of the affidavit.
The Oaths Regulations 2021 provide that a requirement for a deponent or an authorised affidavit witness to sign or initial an affidavit, annexure, exhibit, certificate or other document attached to an affidavit is satisfied if the deponent or witness signs or initials the affidavit, annexure, exhibit, certificate or other document by electronic means.
From 1 January 2025 an affidavit that is signed or initialled by electronic means must include a statement on it that the affidavit was signed or initialled by electronic means.
Difference between an Oath and an Affirmation
An affirmation has the same legal force and the same legal effect as an oath. People are free to choose to swear or affirm an affidavit and they do not need to give a reason for this.
An oath is an attestation to the truth of a statement, which is generally administered by
- the person taking the oath holds a copy of the Bible in the person’s hand and, after the oath has been tendered to the person, says “I swear”; or
- in any other manner and form which the person taking the oath declares to be binding on the person’s conscience; or
- in any other manner or form authorised or permitted by law.
An affirmation is an alternative to an oath. It is also an oral attestation to the truth of a statement, but it is made without swearing to a God or faith or otherwise as described above.
Instead of the deponent ‘swearing’ an affidavit, an affirmation is to be administered to a deponent by asking them ‘Do you solemnly and truly affirm’ followed by the words of the appropriate oath, after which the deponent must say ‘I do solemnly and truly affirm’.
Reasonable modifications or assistance
Sometimes a deponent may need help when making an affidavit, for example if they have a disability or need someone to translate for them.
You can make reasonable modifications to the process of taking an affidavit in those circumstances, or another person may provide assistance, such as translation assistance.
From 1 January 2025 you must certify on the affidavit what modifications were made. For example, if you read the affidavit to the deponent and they nodded in agreement, this must be stated in writing by you on the affidavit.
If another person provides assistance to the deponent (such as translations or assisting a child) they must be present in person or online when the affidavit is signed.
After you and the deponent have both signed the affidavit, you must include the name and address of the person who provided the assistance and what type of assistance was provided.
This does not apply to assistance by a person who prepared the affidavit in a professional capacity on the deponent's instructions, like a legal practitioner or conveyancer.