An affidavit or statutory declaration made in Australia for use overseas should ordinarily be sworn, affirmed or declared before an Australian notary public. The notary administers the oath, affirmation or declaration, witnesses the deponent’s signature and attaches a notarial certificate under seal. Where the overseas authority requires further verification, the Department of Foreign Affairs and Trade (DFAT) then issues an apostille for countries that are parties to the Apostille Convention, or an authentication certificate followed by consular legalisation for other countries.
Affidavits and statutory declarations distinguished
An affidavit is a written statement of facts sworn on oath or affirmed before an authorised person, typically for use as evidence in court proceedings. A statutory declaration is a written statement declared to be true under a statute, typically used for administrative purposes. In Victoria, both are governed by the Oaths and Affirmations Act 2018 (Vic). Commonwealth statutory declarations are made under the Statutory Declarations Act 1959 (Cth). Making a false affidavit or statutory declaration is a serious criminal offence.
Foreign authorities often use different terminology, such as sworn statement, declaration under oath, affidavit of support or declaración jurada. What matters is the form the receiving authority requires and whether it must be sworn, affirmed or simply declared.
Why a notary is usually required
Within Australia, affidavits and statutory declarations can be witnessed by a wide range of authorised persons, including Justices of the Peace, lawyers and certain other professionals. Overseas authorities, however, generally do not recognise these witnesses. A notary public, appointed in Victoria by the Supreme Court under the Public Notaries Act 2001 (Vic), is recognised internationally, and DFAT holds notaries’ signatures so that the notarisation can be apostilled or authenticated.
Common uses
- Affidavits for use in foreign court proceedings, including family law, estate and commercial litigation.
- Declarations of single status or freedom to marry, for marriage abroad.
- Affidavits of support and sponsorship for foreign visa applications.
- Declarations concerning identity, name changes, lost documents or discrepancies in records.
- Declarations in foreign inheritance matters, such as declarations of heirship.
- Declarations of residence, income or assets for foreign tax or banking purposes.
The process
- Obtain the required form and wording. Foreign courts and authorities frequently prescribe the format and content. Use their template where one is provided.
- Prepare the document, but do not sign it. Ensure every statement is accurate and within your own knowledge, or identifies the source of information and belief.
- Prepare the exhibits. Documents referred to in an affidavit are usually annexed as exhibits and must be identified with an exhibit certificate or note signed by the notary.
- Attend the notary. The notary verifies your identity, administers the oath or affirmation, witnesses your signature and attaches a notarial certificate.
- Obtain the apostille or authentication. Lodge the notarised document with DFAT using a Document Legalisation Request Form, by appointment at an Australian Passport Office or by mail. For non-Convention countries, such as the United Arab Emirates and Malaysia, consular legalisation follows.
- Arrange translation if required.
Oath or affirmation
An oath is sworn on a religious text, while an affirmation is a solemn non-religious promise. Both have the same legal effect. The deponent may choose either. Where an oath is chosen, the deponent may bring a religious text of their faith if desired.
Common issues
- Signing in advance. The document must be signed in the notary’s presence after the oath or affirmation is administered.
- Alterations. Any handwritten alteration must be initialled by both the deponent and the notary.
- Using an Australian court form abroad. A form designed for a Victorian court is not necessarily suitable for a foreign court. Use the foreign court’s format.
- Language. The deponent must understand the document. If it is in another language, a translation or interpreter may be required.
How we can assist
Our notary public can review affidavits and declarations for overseas use, administer oaths and affirmations, certify exhibits, and arrange DFAT apostilles, authentication and consular legalisation. The firm’s lawyers can also assist with drafting affidavits in matters in which the firm is retained.
Further information about our notarial practice is available at melbournepublicnotary.com.au.
Frequently asked questions
Who can witness an affidavit made in Melbourne for use overseas?
An affidavit or statutory declaration made in Australia for use overseas should ordinarily be sworn, affirmed or declared before an Australian notary public. The notary administers the oath or affirmation, witnesses the signature and attaches a notarial certificate under seal. DFAT can then issue an apostille or authentication confirming the notary’s signature and seal.
What is the difference between an oath and an affirmation?
Both have the same legal effect. An oath is sworn by reference to a religious belief, while an affirmation is a solemn promise to tell the truth without religious reference. The deponent chooses which to make, and the notary administers it before witnessing the signature. A false statement under either can attract serious penalties.
Can I sign the affidavit before my notary appointment?
No. The affidavit or declaration must be signed in the notary’s presence after the oath, affirmation or declaration is made. If it has already been signed, a fresh copy will usually need to be prepared and signed at the appointment. Any blank spaces should also be completed or struck out before the document is signed.
Notarial services at Chua Tan Associates are provided by our notary public, Kin Wee Chua. Our Melbourne office is at Level 2, 262 Queen Street. To arrange an appointment, please call +61 3 9602 3988 or email chuatan@tpg.com.au. This article provides general information only; requirements are set by the receiving country and may change, so please confirm them with the recipient of your documents.
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