You’ve probably heard the word affidavit, maybe bellowed at the top of a purple-faced executive’s lungs in a knockabout Hollywood family film.
As with most legal jargon you would have some vague notion of them being serious, but not entirely understanding the context of when they’re used and the consequences of someone taking one out.
This article aims to clarify the concept of affidavits, providing a clear explanation of what they are, their purpose, and the steps involved in creating one.
Table of Contents
What is an affidavit?
An affidavit is a written statement that a person swears to be true, confirmed by oath or affirmation, typically used as evidence in court.
While in the movies you might see someone swearing on a Bible, in reality, affidavits are often submitted with witness statements to the court to support the truthfulness of someone's account of events.
What is the purpose of an affidavit?
The purpose of an affidavit is to swear that the contents of a witness statement you have provided are true to the full extent of your knowledge and that you are holding nothing back.
They are extremely serious because you are making an oath to the courts that what you say is true. If you knowingly mislead or lie to the courts in your affidavit you may be prosecuted for perverting the course of justice. The maximum penalty for perverting the course of justice is imprisonment.
Even if you get a few facts wrong or complete your affidavit improperly there could be consequences.
In what situations are affidavits commonly used?
Affidavits are usually used when you’ve been asked to give information relating to a court case.
They are required when an individual files a witness statement in the UK courts.
You confirm that the contents of your witness statement are true and accurate by signing an affidavit.
Typically, a court will give you a deadline on when you need to file your statement. Affidavits are commonly used in the following scenarios:
Property disputes over how someone came to inherit a property, often when an invalid will is involved.
Financial cases, especially related to outstanding debts
When spouses agree to legally annul their marriage.
Family law cases
Inheritance claims
They can also be requested for issues outside of court proceedings, such as when an embassy or consulate requires clarification on certain matters.
In these cases, you will be asked to swear to your statement’s truth with a legal professional in attendance.
More recently affidavits are being replaced by witness statements, this change has come about since the Civil Procedure Rules were introduced.
The difference between the two is that an affidavit contains a jurat, a clause that shows where it was sworn and the legal professional before whom it was sworn, while a witness statement includes a statement of truth – a statement from the person making the witness statement that they believe the facts stated in the document are true.
What are the key components of an affidavit?
Affidavits commonly contain three elements:
The Top
The Main Body
The Tail
The top of an affidavit will include details of the court where a case is being held, including its
name and who is involved in the case.
The body includes an outline of the facts that you are swearing are true it will normally
contained numbered assertions.
The tail of an affidavit is where the deponent, the person swearing to the truth of its contents, signs. It will also be signed by the witnessing Commissioner for Oaths. It will include your name and signature and the commissioners, where the sworn oath took place and it will also be dated.
A Commissioner for Oaths is a qualified person that can ‘administer any oath or take any affidavit for any court or matter in England’. This is set out in The Commissioner for Oaths Act 1889.
In general, affidavits should include:
The title of the case
Details of the person making the case
Their occupation and address
A statement that they are over the age of 18, or a statement of their age if they’re under 18
The evidence (i.e. facts that the witness can prove)
The dated signature of the witness
A jurat, where the Commissioner of Oaths or a solicitor verifies that the affidavit was sworn in the correct manner under the law.
How to make an affidavit
There are several ways to make an affidavit in the UK. The type and wording that you need to use will depend on where it is used.
In the UK an affidavit can be easily made using the Government’s affidavit template.
Alternatively, you can write an affidavit from scratch yourself, or work with a solicitor to draft one together.
Key tips when writing an affidavit:
Make sure the document is titled as an affidavit
Include your details: name, age, address, occupation
Write your statement in plain English in the first person, state the facts, and avoid your personal opinion
If you include evidence, you’ll need to reference it as an exhibit in your affidavit, this is usually included in a separate section with a cover sheet
Include a jurat at the end.
An affidavit should be written in plain, easily comprehendible plain English. There is no need to use legal jargon. The account of the facts of what happened should be included and nothing else. The account should also be neutral without any comment on the other parties involved.
Swearing and notarising an affidavit
Solicitors can sign affidavits. They are usually signed by notaries, a type of solicitor that deals with authenticating identity and signatures.
Another term we’ve referred to is Commissioner Oaths who are a type of notary public who can authorise affidavits under Chapter 10 of the Commissioner for Oaths Act 1889.
Notaries are the oldest form of the legal profession they’ve been trusted to ensure that people are agreeing to the terms they’ve been told they are to since the Roman times, when illiteracy rates were much higher.
Their role is to make sure their client's oaths are accurate and follow the law. They have to follow stringent rules and regulations in their line of work.
Before you sign an affidavit, a notary will make sure you understand its contents. It will be up to you whether you swear against a religious text or not. When you don’t swear against a religious text you make what is known as an affirmation.
Common mistakes to avoid
Several common mistakes should be avoided when making an affidavit, which could otherwise invalidate your witness statement:
Accuracy is the number one priority when it comes to writing affidavits. Inaccurate information could lead to the document being questioned and even legal repercussions
Not getting it notarised. Most affidavits need to be notarised, or they won’t be legally valid
Not following the necessary format. Each type of affidavit comes with a necessary format that must be followed. Failing to follow the prescribed format could lead to your affidavit being rejected
Using ambiguous language and legalese can cause your statement to be misunderstood
Leaving out important information.
How much does an affidavit cost?
The cost of an affidavit will vary depending on who witnesses your oath and where the affidavit will be submitted.
If you are getting an affidavit outside the UK you will need to liaise with a notary public, they often charge more than in the UK.
For an affidavit needed in the UK courts, you can use a notary, or any person permitted to administer oaths under The Commissioners for Oaths (Fees) Order 1993. Under this statute, legal professionals can charge £5 only to witness the signing of an affidavit and £2 to sign an exhibit.
If you need to work with a legal professional to help you draft your affidavit you will also have to pay them for their time.
How Lawhive can help?
At Lawhive our network of litigation solicitors can help you draft an affidavit for your witness statement and witness you signing an affidavit.
We also offer free case evaluations with our legal assessment specialists who can put you in touch with the right lawyer for your case.
Get in touch with us today for expert legal advice tailored to your needs.