in family law cases an affidavit is used as part of the evidence in court
Affidavits are used in court because they speed up the hearing of cases. The party or his witnesses no longer need to provide a lengthy testimony because what they have to say can be read in their affidavits.
It is also a more effective process during trials because the counsels and parties already know what each party and their witnesses have to say, thus, making cross examination faster and easier.
An affidavit is a written statement containing only relevant facts and executed by a party or witness. An affidavit must be subscribed before an authorized person. The rule on swearing of affidavits is found in Section 98AB of the Family Law Act 1975.
An affidavit must not contain the beliefs or opinions of the affiant (except if the affiant is an expert witness). It must only state the relevant facts to the case or application filed before the court. The facts stated in the affidavit must be within the personal knowledge of the affiant, otherwise, the statement would be inadmissible in court for being hearsay evidence. There are certain instances, however, when an affiant can include statements that are outside of his personal knowledge.
There are blank affidavit forms with the Family Court and Federal Circuit Court which the party and his witnesses can simply fill up. Parties can also opt to make their own affidavits. Affidavits are legal documents which are submitted to the court as part of a party’s evidence. The opposing party and his counsel will be served a copy of the party’s affidavit and that of his witnesses. Hence, a party must be very careful in executing his affidavit as the contents therein may be used against him in court. It is always best to ask legal advice first before executing an affidavit.
An affidavit could be typed or handwritten. It must be structured in an orderly manner. It must clearly present the party’s case before the court. If a party is asking something for the court to do, then his affidavit must clearly support his cause. If the party is responding to a case filed against him, then his affidavit must answer the other party’s every allegation. It is recommended to combine similar statements of fact or points in a single paragraph and number these to facilitate an easier way of getting the affiant’s statement across to the court and the respondent.
The affiant’s name and signature, date and place of execution and the subscribing officer’s full name and signature can be found at the bottom of the affidavit. If there are documents attached to the affidavit, the affiant must mention and identify these documents these as his annexures.
Disclaimer : This article provides basic information only and is not a substitute for a professional or legal advice. It is prudent to obtain legal advice from a family lawyer.