Step by step guide – Preparing your affidavit

Information about how to prepare your Affidavit to go with your Application for Divorce.

Before you can apply for a divorce, you may need to prepare an Affidavit.

An Affidavit is your evidence that the court will use to decide whether or not to grant you a divorce.

You will need to prepare an Affidavit if:

• you don’t have a copy of your Marriage certificate
• you and your spouse lived in the same home during the 12 month minimum separation period
• you and your spouse have been married for less than two years, and have not attended counselling
• your surname is different from your married or maiden names
• you are having trouble serving your spouse or do not know where they are.

You can address all these issues in one Affidavit.

If you are filing a joint Application for Divorce, your spouse will also need to prepare an Affidavit.

You may also need to get an affidavit from a Third Party.

1. Decide what orders you want the Court to make

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.

2. Make a plan

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.
  

3. Consider what Affidavits you need

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.

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.
  

The third party who prepares an Affidavit may be asked to go to the hearing to confirm their evidence.

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.

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.