If you need to provide evidence in a New Zealand court or tribunal, you may be required to prepare an affidavit.
An affidavit is a formal written statement of facts that you swear or affirm to be true before an authorised witness. Because it is made under oath or affirmation, it carries significant legal weight and can be relied upon as evidence in legal proceedings.
Many people think an affidavit is simply a signed statement, but it is much more than that. There are strict legal requirements governing how affidavits must be prepared, signed, and witnessed before they can be accepted by a court.
What Is an affidavit?
An affidavit is a written document that sets out facts within the personal knowledge of the person making it, known as the deponent. Before signing the document, the deponent must swear an oath or make an affirmation that the contents are true before a person authorised to witness affidavits.
Once properly completed, an affidavit becomes evidence that the court can consider without the person immediately giving oral testimony.
When Is an affidavit used?
Affidavits are used in a wide variety of legal matters in New Zealand, including:
- Family Court proceedings
- Civil disputes
- Judicial review applications
- Probate and estate administration
- Bankruptcy and insolvency proceedings
- Employment disputes
- Immigration matters
- Applications for urgent court orders, such as injunctions
They may also be required whenever legislation requires facts to be verified under oath or affirmation.
What should an affidavit contain?
An affidavit should:
- Contain only facts that the deponent personally knows
- Be written clearly and logically
- Be divided into numbered paragraphs
- Include relevant dates, names and places
- Refer to supporting documents where necessary
- Avoid opinions, arguments or speculation unless specifically permitted.
Supporting documents can be attached as exhibits. These might include contracts, emails, photographs, bank statements, medical reports or other documents that help prove the facts stated in the affidavit.
Swearing or affirming an affidavit
Before an affidavit can be used, it must be sworn or affirmed before someone authorised by law to witness it.
In New Zealand this commonly includes:
- Barristers and solicitors
- Justices of the Peace
- Court Registrars
- Notaries Public in appropriate circumstances
A person may choose to swear an oath, which involves a religious commitment, or make an affirmation, which does not. Both have exactly the same legal effect.
Why accuracy matters
An affidavit is not simply another form to complete. It is sworn evidence.
Every statement should be accurate and truthful. Knowingly making a false statement in an affidavit may amount to perjury or contempt of court, both of which can carry serious legal consequences.
Before signing an affidavit, it is important to read it carefully and ensure every fact is correct.
Can a lawyer prepare an affidavit?
Yes. Many people instruct a barrister or solicitor to prepare their affidavit.
A lawyer can help identify the legally relevant facts, organise the evidence in a logical way, ensure the affidavit complies with court rules, prepare exhibits correctly, and remove unnecessary or inadmissible material.
Although a lawyer may draft the document, the deponent remains responsible for confirming that every statement is true.
Affidavits and statutory declarations
Affidavits are often confused with statutory declarations, but they serve different purposes.
An affidavit is generally used as evidence in court proceedings and must be sworn or affirmed before an authorised witness. A statutory declaration is usually made outside the court process to formally declare that certain information is true for administrative or legal purposes.
Using the correct document depends on the circumstances and any legal requirements that apply.
Should you obtain legal advice?
Although some straightforward affidavits can be prepared without legal assistance, many legal proceedings involve technical rules that determine what evidence is admissible and how it should be presented.
Mistakes in an affidavit can delay proceedings, weaken your case, or result in the document being rejected. Obtaining legal advice can help ensure your affidavit complies with New Zealand law and presents your evidence clearly and effectively.
Need assistance preparing an affidavit?
If you need an affidavit for court proceedings, immigration matters, a civil dispute, probate, or another legal issue, professional legal assistance can help ensure the document is properly prepared from the outset. A barrister can advise on the evidence that should be included, draft the affidavit, arrange for it to be correctly sworn or affirmed, and represent you throughout your legal matter where required. Contact me to discuss drafting an affidavit.