de facto separation & property settlement

Affidavit Preparation

An affidavit is a legal document containing facts you swear under oath or affirm to be correct & true. Affidavits are used to build a de facto separation & property settlement matter in Court. Affidavits are used to outline a case & to give evidence to the judge. A thorough affidavit provides just enough information about relevant facts in your case to enable the judge to make a decision without sidetracking issues or introducing irrelevant information.

de facto separation & property settlementThe Courts decisions will be based in part on the material contained in your affidavits. The Courts & the Judge places great weight on your affidavit material. Therefore it is paramount that your de facto separation & property settlement matter is run correctly & the affidavit documents are structured correctly, is well written, includes only relevant information and is either sworn or affirmed.

Your Accredited Family Lawyer will craft the strategy that underpins your case and in turn prepare your affidavit material for your de facto separation & property settlement matter. If you are representing yourself you will need to understand how to prepare your own affidavit material. Either way by having an understand of the information that needs to be included & the process involved in preparing a de facto separation & property settlement affidavit you will be able to be more effective with your lawyer. This article provides an outline of how to prepare an effective affidavit.

Information to include in an affidavit:

An affidavit is your evidence, not anyone else’s. The three most important things to keep in mind regarding what to say in an affidavit:

  • Whatever you say in your affidavit must be true to the best of your knowledge. Say you are looking for proof of a de facto relationship, you may say “we were in a committed relationship from May 2006 to…”, not “I think we started dating in May 2006…”
  • Your affidavit can contain only facts to do with your case.
  • The information in your affidavit must be relevant to your case.

Be honest:

Judges & Court officials have seen it all when hearing de facto separation & property settlement matters. They are not fools. You must be honest when you give evidence & in your affidavit material. If you give false or misleading evidence in person or in an affidavit, the Judge may elect not to accept your evidence and this will impact your de facto relationship separation entitlements. It’s a very serious matter to make a false or misleading affidavit.

Only include facts:

Only include facts that you have first-hand knowledge of in your de facto separation & property settlement. That means you can only describe what you saw, heard, did, or said. Be aware of any statements you make that either begin with or could begin with “I think that” or “I was told that,” either edit the way you have written them or remove them. Opinions are allowed only if they’re provided by someone who is credentialed & known to be an expert in that field like a medical professional or a forensic accountant. Professional opinions will be considered by the Court when you are attempting to provide proof of a de facto relationship.

Some exceptions to this rule apply. For example, you must only describe the things you saw, or heard directly, or what you did, or what you said in your de facto separation & property settlement matter. When talking about what someone else said or did you will need to write down the name of the full name of the person, the day & time it was said. For example, “on Saturday 4 May 2011, Sarah said to me what am I entitled to in a de facto relationship, I must have rights?” You can’t quote something that another party heard from someone else. For example, “on Saturday 4 May 2011, Susan told me Sarah said to het what am I entitled to in a de facto relationship, I must have rights?”

Affidavits that form part of a Supreme Court Applicant for interim orders, can include information that you don’t have first hand knowledge & awareness of.

The key here is to include all information in a factual manner & to clearly identify the source of the information.

Ideally you would state:

  • The full name of the person who told you.
  • The date & time when they told you & include any other relevant information such as the location the conversation took place etc.
  • You must also state that you believe it to be true.

 Here’s an example:

Sarah’s friend of 30 years, Susan Walters, told me on or about May 4, 2011, that Sarah was about to leave me & was preparing make a de facto claim against me, and I believe this to be true.

  • You can sometimes write down something your child said. The court will often allow what a child said to be put into an affidavit to avoid having to call the child as a witness.

Use these guidelines when making affidavit statements:

No opinions or conclusions.

  • Don’t write: She was drunk before I arrived at home.
  • Write: When I arrived home, she was drinking alcohol and passed out approximately 15 minutes after I arrived.

OR

  • Don’t write: I just knew she didn’t want to go to her Fathers home.
  • Write: When her Father arrives to collect her she gets agitated & wont go with him willingly.
  • Don’t describe how you felt or reacted.
  • Don’t use: I was hurt & saddened to be told her new partner was already sleeping over at the family home.
  • Write: Her new partner has stayed at the family home a number of nights.
  • Avoid arguing about your de facto relationship separation entitlements.
  • Don’t write: Why do I have to move out of the family home, she should?
  • Write: I continue to live in the family home in order to provide continuity for the children.

OR

  • Don’t write: I hate that he gets to have time with the Children even though he isn’t up to date on his child support payments.
  • Write: He is 14 months in arrears on child support payments. He spends time with the children four times during the week and on every second weekend.
  • No legal arguments:
  • Don’t write: According to child support guidelines, I am entitled to $450 a fortnight.
  • Write: He lists his child support guideline gross income as $75,000.
  • Always be relevant
  • Everything you include in your affidavit must relate to whatever it is that you are asking the Court to rule on. Each affidavit starts with a background section, there is no benefit to including a blow by blow description of every argument you’ve ever had. It gets you nowhere & will annoy the Judge.
  • The key to working out what is relevant or not relevant is to ask yourself “does this piece of information help prove or disprove an important fact or issue in the matter?” If the answer is yes, include it, if not leave it out.

Other tips that may help you:

Your affidavit is not meant to tell the Judge or Court what conclusion or outcome to reach. It is meant to encourage the Judge to come to the same conclusion that you did, based on facts that you included in your affidavit.

Simple language: Don’t try to be a lawyer. Use simple language that makes sense to you.

Stay on point: 
Be concise & stay on point. If your Lawyer is crafting your affidavit they will do this for you. You can help this process by providing the background information they will require in a concise manner.

Get organised check for clarity: Even when you are providing background information to your Lawyer, number your paragraphs & provide the information in chronological order. Include one fact or relevant piece of information per paragraph. Watch your spelling & check for typos. Don’t forget to number your pages too.

Precision matters: This can be the challenging part of preparing a solid affidavit. You need to think about the who, what, when, where, and how. Then write it down this way. Here’s an example; I recall going to dinner with Brian on 23 December 2012 at Bohput Restaurant, as it was Christmas Eve and we had both completed the last of our Christmas shopping together.

Write in the first person: Using “I” whenever possible will help you. Try not to use, “the claimant,” “he/she,” or “they.”

Balance matters: Remember, Judges & Court Officers do this for a living. They read hundreds of affidavits. Try to be fair in your approach & present a balanced view. There is no point inflaming the situation or appointing a horrible picture of our ex partner.

Formatting: Follow the Courts affidavit format.

Knowledge statement or section: The knowledge statement or section simply refers to the section of your affidavit where you state that you believe what is in your affidavit is true & correct.

Swear or affirm the affidavit: You will be required to swear or affirm your affidavit. Your Lawyer can do this with you present. If you are self representing you will need to take it to a lawyer, notary public, or commissioner for taking affidavits & have them witness your signature or affirm the affidavit.

You must be mindful of the fact that swearing a false or misleading affidavit is a very serious offence. It can jeopardise your entire matter. If the Judge believes your affidavit to be false or misleading, your evidence will not be accepted.

Evidence & exhibits: There are many occasions when you will refer to a certain piece of evidence or a document you want the Judge or Court to see. In order to do this correctly you must refer to it in your affidavit and then attach the document to your affidavit as an exhibit. Exhibits can be all sorts of things: emails, photographs, receipts.

The following are examples of exhibits & how they would be described in an affidavit:

  • School report cards, letter from teacher: “James is struggling at school & has sought help from the school councilor.”
  • Bus ticket: “The ticket was booked for 24 December 2012 and had to be cancelled.”
  • Personal tax return: “My personal gross income for 2012 was $110,000.”

Keep in mind that a, “character reference” (which is essentially a letter saying you are a good person) is not an acceptable exhibit. If you have a person prepared to give you a character reference you need to get them to swear an affidavit stating that you are a good person. You can not attach a character reference as an exhibit.

If you are referring to an exhibit in your affidavit you should refer to it in a certain way. Here are some examples of how to do this:

  • On December 25, 2016, I received an email from Samantha Jane where she talked about us “living together in our own home”. That letter is attached to this affidavit as Exhibit A.
  • Ensure the first reference only is in bold. When you swear or affirm your affidavit, you must also have all of your exhibits attached.
  • Just like affidavits, each exhibit must be short and to the point. The judge can only consider what is relevant. Don’t include a long email chain, just include the part if the email correspondence that is relevant to your case.

de facto separation & property settlementI started this process by asking “what am I entitled to in a de facto relationship”. My Lawyer quickly advised me that it wasn’t so much about de facto relationship separation entitlements as it was about being able to show proof of a de facto relationship in order to have any de facto separation & property settlement rights. It was a frightening time.

It took over two & a half years to settle the matter. What became apparent to me very quickly was that I had to prove my relationship was in fact a de facto relationship in order to have any de facto separation & property settlement rights.

We must have filed something like 24 affidavits throughout the matter plus witness affidavits & then my responses to his witness affidavits. It was excruciating to be honest. If you are running a matter currently my advice would be to take the time to understand the court processes & how your solicitor intends to craft your case strategy & in turn your affidavit material. Once you understand this you will then be able to support this process & provide relevant facts, evidence & witness material.

Don’t be bullied out of taking action. If you believe you were in a de facto relationship and have de facto relationship separation entitlements you should push on & run your matter.

If you have queries in relation to affidavit preparation you should engage an Accredited Family Law Professional and ensure you understand all of the Laws governing de facto relationships in Australia.

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