An affidavit is a legal document used in court proceedings, and for other purposes authorised by law. It is made by one person (called the deponent) in the presence of an authorised affidavit taker.
This page explains the process of making an affidavit, and has information for authorised affidavit takers.
How to make an affidavit
Get an affidavit form
The form below is an example of the affidavit form to be used in the state of Victoria.
Some courts and tribunals have different rules about the format of an affidavit. Please check with the relevant court, tribunal or your lawyer before using this form.
You can fill out most of the affidavit form, but don’t sign it yet. This needs to be done in the presence of an authorised affidavit taker.
Find an authorised affidavit taker
There are many people authorised to take an affidavit, such as a Justice of the Peace, an Australian legal practitioner, or a court registrar. A complete list of authorised affidavit takers is below.
Complete list of authorised affidavit takers
Under Section 19 of the Oaths and Affirmations Act 2018 (as of 1 March 2019), previously Evidence (Miscellaneous Provisions) Act 1958, affidavits for use in any court or for any legal purpose may be sworn and taken within Victoria before persons including:
- A public notary
- An Australian legal practitioner
- A police officer of or above the rank of sergeant or for the time being in charge of a police station
- A Victorian Public Service employee with a prescribed classification level of 4 or above
- For example, a policy officer employed as a VPS5 or an adviser employed as a VPS4
- Any prescribed affidavit taker, including:
- Transport Accident Commission officers and employees with a classification of level 4 or above
- State Trustees officers and employees with a classification level of 4 or above
- Victorian Institute of Teaching Investigators with a classification level of 4 or above
- Country Fire Authority officers and employees with a classification level of 7
- A judicial officer
- For example, a judge or magistrate
- An associate to a judicial officer
- An honorary justice
- The prothonotary or a deputy prothonotary of the Supreme Court
- The registrar of probates or an assistant registrar of probates
- The principal registrar, a registrar or a deputy registrar of the Magistrates’ Court
- The principal registrar, a registrar or a deputy registrar of the Children’s Court
- The principal registrar, a registrar or a deputy registrar of VCAT
- The principal registrar or a registrar of the Coroners Court
- A member of VCAT
- A member or former member of either House of the Parliament of Victoria
- A member or former member of either House of the Parliament of the Commonwealth
- A senior officer of a Victorian municipal Council who meets one of the following criteria:
- Chief Executive Officer
- A member of Council staff with management responsibilities and reporting directly to the Chief Executive Officer
- Any other member of Council staff earning a salary of at least $124,000 (or a higher threshold, if specified by the Minister under s 97B of the Local Government Act 1989)
- The registrar or a deputy registrar of the County Court
- A person registered as a patent attorney
- A fellow of the Institute of Legal Executives (Victoria)
- A person acting judicially
- For example, an arbitrator or any person or body with authority to hear, receive and examine evidence
- Any other officer or person empowered, authorised or permitted by or under any Act or rules of a court or rules of a tribunal to take affidavits
Visit an authorised affidavit taker
In their presence, you must:
- sign or initial any alteration to the affidavit
- sign each page
- sign the affidavit.
The authorised affidavit taker must then:
- sign or initial any alteration
- sign each page of the affidavit.
If the affidavit refers to another document, the authorised affidavit taker must attach a certificate identifying the document as an exhibit to the affidavit, and
- sign and date the certificate
- write, type or stamp their name, address and capacity to take an affidavit.
You must also sign this certificate.
Take an oath or make an affirmation
You will then need to take an oath or make affirmation to confirm the affidavit is true.
An oath is swearing the truth on a religious or spiritual belief. It can be made using a religious text, such as a bible, tanach or koran, but does not require one.
An affirmation is a non-religious swearing of the truth.
After hearing the oath or affirmation, the authorised affidavit taker must complete the jurat. This is the section of the affidavit form that includes the place and date the affidavit is sworn, and the authorised affidavit taker’s:
- name and personal or professional address
- authority to take the affidavit.
The affidavit is now complete.
Using an interpreter
A person may use an interpreter when making an affidavit.
Affidavits are usually prepared on the basis that they might be used in a court or a tribunal. If the affidavit is made in a language other than English, it is unlikely that the court or tribunal would accept it, unless it was accompanied by an affidavit from a qualified interpreter who:
- swore an oath or made an affirmation that they had accurately translated the prescribed words from English into the deponent's language and translated what the deponent said in their language into English
- provided a written translation in English of the deponent's affidavit.
Information for authorised affidavit takers
If you are authorised because of your profession you can take any affidavit, not just those that relate to your profession.
The only exception is persons employed in a court or tribunal with a classification level of 2 or 3, such as Victorian Civil and Administrative Tribunal counter staff, who are only permitted to take affidavits in the course of their duties.
Anyone can make an affidavit
If a person is able to understand that they are making a legal promise to tell the truth, and that being untruthful in an affidavit is an offence, they can make an affidavit.
Making reasonable modifications for someone to make their affidavit
If a person also has a disability that makes it difficult or impossible to comply with the legal requirements for making an affidavit, you may need to modify the process so that a deponent can complete their affidavit.
Making reasonable modifications to the affidavit process does not require a medical assessment. You should use your own good judgement about what is necessary to ensure a person's disability does not prevent them making an affidavit
People who do not feel confident swearing an affidavit in English can request the services of an interpreter.
When an interpreter is used, the process is as follows:
- The interpreter undertakes 'the interpreter's oath', which ensures that the interpreter translates what they hear or read to the best of their ability and in accordance with the law.
- The interpreter reads the affidavit to the deponent.
- The interpreter administers the oath to the deponent. The deponent may repeat the oath in their own language.
Any deponent (the person swearing the affidavit) with a hearing impairment or preferring to communicate in sign language may use an interpreter. The interpreter's oath and form of jurat used for persons of a culturally and linguistically diverse background should be modified accordingly.
When an interpreter is not used
When an interpreter is not used and the deponent can read and write, he/she should sign the affidavit and choose whether to swear or affirm the content of the affidavit.
If the deponent chooses to swear the affidavit ('make an oath') he/she may be handed their preferred religious text and a paper with the statement: 'Is this your name and signature?'.
Upon the deponent making an affirmative gesture, the person taking the affidavit should show the deponent a paper on which is written: 'I, [name of person making oath], swear [or promise] by Almighty God [or the person may name a god recognised by the person's religion] that the contents of this affidavit are true and correct'. Again, an affirmative gesture is required.
If the deponent chooses to affirm the affidavit ('make an affirmation') he/she should be shown a paper with the statement: I, [name of person making affirmation], solemnly and sincerely affirm that the contents of this affidavit are true and correct.'.
Again, an affirmative gesture is required from the deponent.
If the deponent is hearing but not speech-impaired, the oath may be administered by asking the deponent to read aloud the oath, which should be placed before the deponent in writing.
Inadvertent non-compliance of an affidavit
If a person makes a small, insignificant mistake that does not strictly comply with a requirement then the affidavit may still be valid. This will depend on each case, and may ultimately depend on a court ruling. Not making the oral oath or affirmation will invalidate an affidavit.
Asking the person making their affidavit to swear the oath or make an affirmation
A person making an oath or affirmation for an affidavit must say the prescribed words aloud. They may repeat the words after the authorised affidavit taker has spoken them, or read them aloud. It is not sufficient (unless reasonable modifications must be made because of a disability) to simply answer yes to questions such as ‘Are the statements made in this affidavit true and correct?’
Wording of your authority to take an affidavit
You should use the wording referred to in the list of authorised affidavit takers above. So, for example, an Australian legal practitioner is authorised to take an affidavit.