Statutory Declarations vs Affidavits: Uncovering the Key Differences

Both statutory declarations and affidavits are formal, written statements of fact in which the person making it confirms the information contained in it to be true. They are both legally binding and have the same legal consequences – if a person knowingly and willingly makes a false statutory declaration or an affidavit, they can be prosecuted for the crime of perjury.

 

Despite their similarities, statutory declarations and affidavits still differ in three ways:

 

1. Different formalities for execution: An affidavit requires the person making the written statement to swear under oath or make an affirmation in front of someone legally qualified to witness and administer it. A statutory declaration does require any oath or affirmation.

 

2. Form: Legislation/ rules and regulations often specify that statutory declarations and affidavits must include certain phrases to be valid. These phrases are different from statutory declarations and affidavits and are a way in which the two are distinguished.

 

3. Purpose and Usage: Affidavits are generally used for court, whereas statutory declarations tend to be used for purposes outside of court.

 

We will explore these differences in further detail below. To understand these differences, however, you will first need a brief explanation of what exactly affidavits and statutory declarations are.

 

 

What is an affidavit/affirmation?

 

An affidavit is a written statement of fact that is made by a person and then stated to be true by swearing an oath or making an affirmation. An oath or affirmation must be given before someone authorised by the law to witness the affidavit.

 

The person who gives the written statement of facts through an affidavit or affirmation is called a deponent.

As stated, an affidavit requires the deponent to confirm the truthfulness of the statement by swearing under oath or making an affirmation.

 

Both swearing an oath and making an affirmation are solemn promises, to tell the truth. Despite this, swearing under oath and making an affirmation are not the same.

 

Oaths are sworn before a divine witness or deity (i.e. God). Thereby, oaths are generally sworn by persons with religious backgrounds.  

 

An affirmation is not sworn before any divine witness. It is merely a solemn and sincere affirmation of the maker as to the truth of the facts in the written statement. Affirmations are therefore generally made by people who do not have a religious background and thus cannot swear before a divine witness or deity. Affirmations can also be made by religious persons if they object for any reason against the swearing of an oath.

 

Generally, it is possible to make an affirmation in place of an oath for any purpose required by law. Both affirmations and affidavits hold the same legal authority.

 

What is a statutory declaration?

 

A statutory declaration is a written statement of fact made by a person. Like affidavits, statutory declarations need to be witnessed by individuals legally authorised to do so.

 

The person giving the written statement of fact through a statutory declaration is called a ‘deponent’.

 

Statutory declarations are often used by deponents to declare some facts for the purpose of fulfilling some legal conditions, where evidence on the matter is otherwise unavailable or lacking.

 

 

Similarities between statutory declarations and affidavits

 

Clearly, statutory declarations and affidavits are very similar.

 

Both statutory declarations and affidavits are written statements of fact made by persons for legal purposes. Both are legally binding – if a deponent lies or gives false information as part of either a statutory declaration or affidavit, he can be prosecuted for the crime of perjury.

 

Both legal documents need to be witnessed by persons authorised to do so. Moreover, in most jurisdictions, the individual authorised to witness these documents are the same individuals. Authorised persons generally include barristers, notaries, chartered legal executives, certain solicitors, justices of the peace and some public servants.

 

Regardless, in both cases, the person witnessing the document must be independent of the deponent.

 

Difference between a statutory declaration and an affidavit

 

Statutory declarations differ from affidavits in three main ways.

 

1. Formalities for valid execution

 

Firstly, statutory declarations and affidavits must satisfy different formalities before they can be validly executed.

 

As stated, an affidavit must be confirmed to be true by the deponent swearing an oath or making an affirmation before someone authorised by law to witness affidavits.

 

For a statutory declaration, however, there is no requirement for the deponent to confirm its truthfulness by swearing an oath or making an affirmation.

 

In practical terms, this means that a deponent for an affirmation needs to swear an oath in front of a person authorised to witness the affidavit. Usually, when the affidavit is being witnessed, the deponent will be asked to repeat or read out something similar to the following:

 

In the case of an oath: “I swear by [Almighty God] that this is my name and handwriting and that the contents of my affidavit are true.”

 

In the case of an affirmation: “I [FULL NAME], do solemnly and sincerely affirm that this is my name and handwriting and that the contents of this affidavit are true.”

 

For a statutory declaration, however, nothing of this sort needs to be said to the person witnessing the statutory declaration.

 

2.  Usage

 

Statutory declarations and affidavits differ in the way in which they are used.

 

An affidavit is generally used as a part of court proceedings. They are often used in legal proceedings as evidence of certain matters.

 

Statutory declarations, on the other hand, are usually used for matters outside of court. For instance, statutory declarations are commonly used to change one’s name, which requires the individual to renounce their old name and declare their new name in a document witnessed by a lawyer.

 

3.  Differences as to form

 

Most common law jurisdictions specify the format a statutory declaration or affidavit must embody to be valid. Specifically, legislation often specifies phrases that must be included at the beginning and end of these legal documents for them to be valid. 

 

An affidavit in most common law jurisdictions must begin in the following way:

 

“I [FULL NAME OF DEPONENT] of [INSERT ADDRESS] do solemnly and sincerely affirm…”

 

An affirmation in most common law jurisdictions must begin in the following way:

“I [FULL NAME OF DEPONENT] of [INSERT ADDRESS] do solemnly and sincerely affirm…”

 

A statutory declaration, on the other hand, must begin in the following way: 

            “I [FULL NAME OF DEPONENT] do solemnly and sincerely declare that…”

 

Statutory declarations must also end with:

“and I make this solemn declaration conscientiously believing the same to be true, and by virtue of the provision of the Statutory Declarations Act 1835.”

 

Please note that the stated phrases are only appropriate in the England & Wales jurisdiction. When writing your own legal documents, you should check the requirements of your jurisdiction.

 

 

Different types of affidavits and affirmations

 

There are numerous different types of affidavits and affirmations that serve different purposes and situations. Here we will cover a few of the most common types of affidavits.

 

1. Affidavit/Affirmation of service

 

An affidavit of service of process is used as part of the litigation process when a lawyer or business serves court documents to another person. This affidavit states that documents were served on an entity or other person by a specified person. It states certain key information such as who the documents were served on and the date and time of the service.

 

We have created comprehensive affidavits of service templates for you to use, including three different forms depending on which party (the defendant or plaintiff) has served the documents at issue.

 

For an affidavit of service template for service by the defendant to the plaintiff, access it here. 

 

For an affidavit of service template for service by the plaintiff to the defendant, access it here. 

 

We have also created comprehensive affidavits of service templates for writ of summons or an originating summons. Both writs of summons and originating summons are documents that must be served by plaintiffs to initiate civil proceedings.

 

For affidavit/affirmation of service template for service by the plaintiff to the defendant for the initiation of civil proceedings, access it here. 

 

2. Affidavit/Affirmation to Court Summons

 

Affidavits and affirmations are often required in support of a court summons as part of interlocutory proceedings.

 

Interlocutory proceedings are proceedings dealing with disputes between the parties in the interval between when the civil lawsuit begins and before a court has given final judgment. Witnesses are not allowed to provide evidence in such interlocutory proceedings, and as such, affidavits will be used by lawyers as evidence to support their arguments instead.

 

We have also created comprehensive affidavits/affirms to court summons templates, including different versions depending on which party is filing the affidavit with the court.

 

• For an affidavit/affirmation filed by the defendant in opposition to a court summons access it here. 

• For an affidavit/affirmation filed by the plaintiff in support of a court summons access it here.

• For an affidavit/affirmation filed by a third party who is not the plaintiff/defendant in support of/in opposition to a court summons, access it here. 

 

3.  Financial Affidavit

 

A financial affidavit verifies financial information relating to the deponent. They are commonly used in divorce cases, where each party must disclose a clear picture of their financial position, including any assets and debt they may have.

 

4. Affidavit of identity theft

 

If a person’s identity has been stolen, an affidavit of identity can be used to confirm the person’s identity to third parties such as creditors and banks. 

 

5. Affidavit of death

 

An affidavit of death is used to notify an individual, court, or entity (such as a company) that an individual has passed away.

 

 

Information to include in an affidavit or statutory declaration

 

Only facts should be provided by a deponent in an affidavit/affirmation or statutory declaration. Opinions, beliefs, hearsay, hypothetical statements, and generalisations should not be included. This is unless the deponent is an expert witness, in which case his/her expert opinion can also serve as evidence.

 

The paragraphs containing the facts should be numbered. All paragraphs should also be short and concise. Furthermore, the affidavit/affirmation or statutory declaration should be written in first person tense.

 

Any documents referred to in affidavits/affirmations or statutory declarations shall be referred to as exhibits and annexed to the affidavits/affirmations. For ease of navigation, these exhibits should be numbered. 

 

Additionally, the information should be within the deponent’s personal knowledge. The deponent should have seen or heard the information.

 

The deponent will be responsible for maintaining accurate information in his/her affidavit/affirmation or statutory declaration. If false or misleading information is knowingly given, a deponent is prone to be prosecuted for the crime of perjury.

 

How should I write an Affidavit/Affirmation?

 

1. Details of proceedings

 

The first section of an affidavit outlines the basic details of the proceedings to which it pertains. This section will state information such as the court where the proceedings will be heard, any case reference or a number and the personal details of the plaintiff and defendant. 

 

2. Your identity

 

The next section includes the details of the deponent. Frequently included details include the deponent’s name, address, occupation, and current date.

 

3. Evidence

 

The third section is where the deponent recounts the facts or makes the statement intended to serve as evidence in the case at hand.

 

4. Statement of truth

 

Next, a statement of truth is included. This must state that everything outlined in the affidavit is true.

 

An example statement of truth is as follows: “And I make oath and say that the contents of this affidavit are true.”

 

5. Signature and witness

 

The signature of the deponent along with the information of the witness before whom you swore an oath or affirmed will be included.

 

 

How to write a statutory declaration?

 

Your statutory declaration should contain:

 

• Your full name

• Your address

• Your occupation

• A statement to begin that you “I [FULL NAME OF DEPONENT] do solemnly and sincerely declare that…”

• A statement after stating the facts that you ‘do solemnly and sincerely declare’ the things you say are true.

 

We offer comprehensive statutory declaration templates. We have one template suitable for court proceedings and another suitable for all matters outside the courtroom. You can find links to them below:

 

1. Statutory declaration suitable for court proceedings

 

You can access this template here.

 

2. Statutory declaration suitable for all matters outside the courtroom

 

You can access this template here.