Before you start preparing your Affidavit, you must decide what orders you want the Court to make. The purpose of your Affidavit is to persuade the Court to make the orders you are seeking. It is your evidence.
It is important to have a plan as your Affidavit will include a lot of information the court needs to grant a Divorce Order. If you don’t include all the relevant information, the court may adjourn or dismiss your Application for Divorce.
Before you start writing your Affidavit, you may want to plan:
- what information you will include
- what documents you will include
- how your Affidavit will be structured.
It is important that your Affidavit is easy to read so the court can understand what you are trying to say. To do this:
- write in chronological order (the order in which things occurred)
- divide your Affidavit by topics using headings
- keep it brief
- remember who you are writing to - the court has no personal knowledge of your relationship so you must tell them all of the facts.
You should only include information that is relevant to the orders you want the court to make. The court can’t consider irrelevant or unnecessary information. If you include too much irrelevant or unnecessary information in your Affidavit, the court may refuse to read it.
Examples of relevant information you should include:
- your date of separation
- changes to your financial circumstances
- the name of your child’s school.
Examples of irrelevant information that you shouldn’t include:
- your personal opinion, for example, ‘I could tell that John wasn’t ready to commit’
- hearsay evidence - evidence of what someone else saw, heard, or otherwise witnessed, for example, ‘Sarah told me that she saw John at the supermarket’
- hypothetical statements, for example, ‘If Jane hadn’t travelled so much for work, we wouldn’t have broken up’
- generalisations, for example, ‘All men are afraid of commitment’
- offensive comments, for example, ‘John is a bastard’
- submissions, for example, ‘The court can be satisfied Jane and I have been separated for 12 months’
- legal advice you have received
- your interpretation of the law.
If you are making a sole Application for Divorce, you need to file an affidavit.
If you are filing a joint Application for Divorce, your spouse will also need to prepare an Affidavit. Either you or your spouse will be applicant one and the other person will be applicant two.
You may also need to get an affidavit from a Third Party.
Affidavit in lieu of marriage certificate
If you can’t get a copy of your Marriage Certificate, in the Affidavit you file with your Application for Divorce, you will have to explain:
- you are married
- your marriage is recognised under Australian law
- why you don’t have a copy of your marriage certificate
- your attempts at getting a copy of your marriage certificate.
- Instructions: Affidavit in lieu of Marriage Certificate
- Sample: Affidavit in lieu of Marriage Certificate
Separation under one roof
If, after separating, you and your spouse continued living in the same house, you can still apply for a divorce once you have been separated for at least 12 months.
In the Affidavit you file with your Application for Divorce, you will have to explain:
- the date you and your spouse separated
- the dates you and your spouse lived in the same house
- why you and your spouse continued living in the same house
- who you told about the separation, for example, friends, family, government agencies
- any changes to sleeping arrangements, finances, parenting, and sharing of household tasks.
If you are filing a sole Application for Divorce, you should file:
- your Affidavit
- an Affidavit prepared by an independent third party, such as a friend or family member, explaining how they learned about your separation.
If you are filing a joint Application for Divorce, you should file:
- your Affidavit
- an Affidavit prepared by your spouse.
- Instructions: for completing an Affidavit – Separation under one roof
- Sample: Affidavit – Separation under one roof
The third party who prepares an Affidavit may be asked to go to the hearing to confirm their evidence.
- Instructions: Third party Affidavit – Separation under one roof
- Sample: Third party Affidavit – Separation under one roof
If a third party doesn’t understand or can’t complete this Affidavit, they should get legal advice.
Marriage less than two years
If you and your spouse have been married less than two years, you will need to get a Counselling Certificate to file with your Application for Divorce.
If you are unable to attend counselling with your spouse, you must ask the court’s permission to apply for a divorce. To do this, you must include in the Affidavit you file with your Application for Divorce an explanation of:
- why you have not attended counselling, and
- any special circumstances that have prevented you from getting a counselling certificate, for example a history of domestic violence.
Alternatively, you can wait until you have been married for more than two years before you apply for a divorce.
Your safety is important. If you feel unsafe or are experiencing any violence, contact the police, a domestic violence counsellor or get legal advice.
- Instructions: Affidavit – Marriage less than 2 years non-filing of counselling certificate
- Sample: Affidavit – Marriage less than 2 years non-filing of counselling certificate
If you don’t understand or can’t complete this Affidavit or have concerns about what to include, you should get legal advice.
Change of name
If your surname on your Application for Divorce is different from your married or maiden names, you must:
- file a copy of your Change of Name Certificate with your application
- prepare an affidavit explaining why your name is different to your married or maiden name.
If you don’t understand or can’t complete this Affidavit, you should get legal advice.
Before you start writing your Affidavit, you should get all the documents you want to attach.
You must use the correct form to write your Affidavit.
To download an Affidavit form, see Affidavit on the Federal Circuit and Family Court of Australia website.
Contents
When you are preparing your Affidavit, you must:
- use plain language
- write in the first person
- only state the facts
- be specific - use dates, times, amounts, locations and names where possible
- refer to any conversations using the actual words spoken, for example, I said to Jane words to the effect, “That’s fine.”
- separate each topic using headings
- include only one issue per paragraph
- number each paragraph
- number each page consecutively, including any annexures.
Don’t include any information or documents that suggest or prove you have committed a criminal offence. This can be used as evidence against you later if you are charged. If you are not sure what to include, you should get legal advice.
Formatting
Your Affidavit should be:
- double spaced
- left aligned
- size 12 font
- in an easy to read font, for example Arial or Calibri
- written in English.
Don’t sign your Affidavit until you are ready to have it witnessed.
Where you can support the facts in your Affidavit with a document, you must attach a copy of the document to your Affidavit, for example photos, letters or emails. These attached documents are called annexures.
To include documents in your Affidavit:
- refer to each of the documents in the text of your Affidavit - if there is more than one document, give it a number or letter, for example ‘Annexure 1’
- attach the documents to the back of your Affidavit in the order that they are mentioned in your Affidavit
- create a cover page for each document, with the statement: ‘This is the document referred to as Annexure [insert reference number] in the Affidavit of [insert deponent’s name], sworn/affirmed at [insert place] on [insert date] before me [authorised person to sign and provide name and qualification].’
- continue the page numbering in your Affidavit across all annexures.
Make sure the documents you attach to your Affidavit are clear and easy to read. If they are not, the court may not consider them, or they may ask you to provide another copy.
Don’t include original documents in your Affidavit - only attach photocopies. The documents you file become the courts property. You will not be able to get them back once your case in finished.
You must swear (religious oath) or affirm (non-religious oath) that the contents of your Affidavit are true.
You must sign, and have each page of your Affidavit witnessed, by a Justice of the Peace or lawyer. You must also get any annexures witnessed by a Justice of the Peace or lawyer.
For more information about where to find a Justice of the Peace, see Finding a JP on the Department of Communities and Justice website.
To fix any error(s) in your Affidavit, cross out the error(s) and write your initials next to your change(s). The person witnessing your Affidavit must also write their initials next to each change.
If you are unsure what to write in an Affidavit, or what documents to attach, you should get legal advice.
Once you have prepared your Affidavit, you need to complete your application. For more information, see Complete your Application for Divorce.
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